Joint Board of Coat, Suit and Allied Garment Workers

JOINT BOARD OF COAT, SUIT AND ALLIED GARMENT WORKERS 735 Joint Board of Coat, Suit and Allied Garment Work- ers' Unions, ILGWU, AFL-CIO and Hazantown Inc. Case 2-CP-503 August 2, 1974 DECISION AND ORDER By CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On January 18, 1974, Administrative Law Judge Thomas A. Ricci issued the attached Decision in this proceeding. Thereafter, the General Counsel, and the Respondent filed exceptions together with supporting briefs, and the Charging Party filed a reply brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and finds merit in certain exceptions of the Respon- dent. It therefore adopts only those findings' which are consistent with the following: The issue presented in this case concerns the scope of the protection to which the Respondent, a garment industry union, is entitled under the provisions of the garment industry proviso contained in Section 8(e) of the Act. The proviso reads, in part: Provided further, That for the purpose of this sub- section (e) and section 8(b)(4)(B) the terms "any employer" . . . and "any person" . . . shall not include persons in the relation of a jobber, manu- facturer, contractor, or subcontrator working on the goods or premises of the jobber or manufac- turer or performing parts of an integrated process of production in the apparel and clothing indus- try.... In the instant case, the Respondent (hereinafter re- ferred to as the Union) was charged with violating i As the record , exceptions, and briefs adequately present the issues and the positions of the parties, Respondent's request for oral argument is hereby denied 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 (1950) enfd 188 F 2d 362 (C A 3, 1951) We have carefully examined the record and find no basis for reversing his findings. The Respondent has also excepted to the Administrative Law Judge's failure to rule on Respondent's motion to amend its answer to the complaint made after the close of the hearing In the absence of any opposition thereto, and because it will not prejudice the position of any of the parties, we shall grant the motion Section 8(b)(7)(C) of the Act by picketing Hazantown for more than 30 days without filing a petition in order to force Hazantown to recognize and bargain with the Respondent as the representative of the em- ployees of certain contractors who perform work for Hazantown. In defense, the Respondent asserts that its picketing lacked a recognitional or organizational purpose and that the objective of the picketing, to force Hazantown to agree to use only contractors whose employees were already represented by the Union, was consistent with the intent of the garment industry proviso. For the reasons hereinafter con- tained, we find merit in the Respondent's contentions. The facts were not disputed. Hazantown is a jobber in the apparel industry. Its only place of business is in New York City, New York, where it employs approximately four employ- ees who design and make clothing patterns and sam- ple garments and approximately three shipping and office clerical employees. The actual garments are not made by Hazantown, but are completely fabricated by various contractors, located in Pennsylvania and New Jersey, who use raw materials shipped on Hazantown's order from suppliers. The contractors employ traditional garment industry employees; i.e., cutters, sewing machine operators, stitchers, and pres- sers. When the garments are completed, they are shipped to Hazantown which distributes them to its retail customers. Neither Hazantown's employees in New York City nor the employees of its out-of-state contractors are represented by any labor organiza- tion. On September 12, 1973,2 the Respondent 's agent requested Hazantown's president to execute a so- called jobbers contract. This contract between the Union and the jobber, who is described therein as "the Employer," requires the jobber to deal only with those contractors designated and approved in ad- vance by the Union, and expres§ly states that it is not applicable to the employees of the jobber on his prem- ises "or in his inside shop whether the same is located on his premises or elsewhere." The jobber contract also provides for the fixing of piece rates by the Union and the jobber and requires the jobber to pay the contractor an amount sufficient to cover the compen- sation for the contractors' employees, which is fixed in a contract between the Union and the contractor,3 plus a reasonable amount to cover overhead and serv- 2 All dates are in 1973 unless otherwise noted 3 These contractor's agreements contain a recognition clause in which the contractor recognizes the Respondent as the representative of its employees as well as other provisions dealing with such typical conditions of employ- ment as trial periods, wages , wage increases, hours, overtime, holidays, and vacations Like the jobber's contract , the contractor's agreement provides that the piece rate paid by the jobber to the contractor will cover the contractor's cost of wages, benefits, overhead , and services Unlike the job- Continued 212 NLRB No. 106 736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ices in order to ensure against diversion of the moneys paid for compensation; makes the jobber liable, to a limited extent, for defaults by the contractors in pay- ing compensation to the contractors' employees; re- quires the jobber to provide and pay the full cost of disability benefits for the contractors' employees; re- quires the jobber to make contributions to the Union's various trust funds from which the contrac- tors' employees receive semiannual bonuses and health and welfare, retirement, and unemployment benefits; authorizes a union representative to visit the jobber's premises to take up complaints and to exam- ine its books and records to determine whether the jobber is complying with the terms of the contract; and binds the jobber to arbitrate disputes with the Union. In addition, the jobber's contract contains lan- guage providing that in a labor dispute, the jobber and the contractor have "a close unity of interests with each other" and "are not neutrals with respect to each other but are jointly engaged in an integrated produc- tion effort." Hazantown refused to execute the contract. There- after, on September 17, the Union began picketing Hazantown's premises .4 None of Hazantown's em- ployees participated in the picketing or engaged in a strike. On October 16, Hazantown filed a charge against the Union alleging a violation of Section 8(b)(7)(C) of the Act. On October 18, in a letter to Hazantown, the Union disclaimed any interest in rep- resenting any of Hazantown's own employees, ex- plaining that its local did not have jurisdiction over such employees, and that its sole desire, as previously stated, was to obtain Hazantown's signature on the jobber's contract. In November, the picketing was enjoined by the Federal District Court for the South- ern District of New York. However, in February 1974, the Court of Appeals for the Second Circuit reversed.5 The Administrative Law Judge found that the terms of the jobber's contract in effect required Ha- zantown to recognize the Respondent as the bargain- ing agent for its contractor's employees and to bargain with the Respondent concerning the wages, benefits, and working conditions of those employees. The Administrative Law Judge found that the Respondent's picketing of Hazantown for these pur- poses without compliance with Section 8(b)(7)(C) was in violation of the Act. In addition, relying on lan- ber, however, the contractor is not obligated to make payments to any of the Respondent's various trust funds. The picket signs read "Strike/Hazantown/Mary Allen Payne." " The latter has no employees and is merely a holding company which owns all, of Hazantown's stock. 5 However, the court ordered the Respondent to eliminate the word "Strike" from the picket signs because there actually was no strike. Danielson v. Joint Board of Coat, Suit, and Allied Garment Workers' Union, I.G. G. W U., 494 F.2d 1230 (1974). guage in the legislative history of the garment industry proviso characterizing the jobber as "the virtual em- ployer of the contractor's employees," and further that the jobber and its contractors constitute "a single unified employer," 6 the Administrative Law Judge found that the Respondent's unlawful picketing of Hazantown likewise constituted unlawful recogni- tional picketing of Hazantown's nonunion contrac- tors. Finally, the Administrative Law Judge concluded that inasmuch as the garment industry pro- viso specifically exempted garment industry unions only from violations of Section 8(b)(4)(B) and 8(e) of the Act, he would not extend the proviso's protection to conduct which violated Section 8(b)(7)(C).7 We dis- agree. Contrary to the Administrative Law Judge, we find that the Respondent's picketing was'not recognitional or organizational in nature. The record establishes that the Respondent was not seeking to represent or organize Hazantown's own employees or the employ- ees of Hazantown's nonunion contractors. Indeed, not only did the Respondent disclaim any such inter- est, but the jobber's contract specifically excludes Hazantown's own employees. In addition, Respondent's local confines its membership to em- ployees such as cutters, sewers, and machine opera- tors, who perform actual production work and who usually work for contractors, and does not admit to membership those kinds of employees employed by Hazantown; e.g., designers, patternmakers, markers, and sample hands. The Respondent's only objective was to force Hazantown to execute the jobber's con- tract and thereby agree to send its fabrication work exclusively to union contractors, whose employees are already represented by the Respondent, rather than to the nonunion contractors with whom Hazantown has been dealing. In the absence of any evidence that the Respondent has attempted to organize Hazantown's employees or the employees at Hazantown's non- union contractors prior to its picketing of Hazantown, there is no basis for the Administrative Law Judge to find, as he did, that the Respondent's picketing had any representational or organizational object. Nor is there any support in the record for the Gen- eral Counsel's contention that the terms of the jobber's contract make Hazantown a joint employer 6 105 Cong Rec 14483, reprinted in II Leg. Hist. at 1680 7In finding that the Respondent violated Sec . 8(bX7)(C) of the Act, the Administrative Law Judge did not rely on either of the legal theories ad- vanced by the General Counsel. In essence, the General Counsel's argument, discussed in more detail infra, was that terms of the jobber's contract made Hazantown a joint employer of the contractors ' employees and that therefore the Respondent's picketing constituted recognitional picketing of Hazantown's nonunion contractors Further, the General Counsel argued that the terms of the jobber's contract would have a long-range effect on the working conditions of Hazantown's direct employees and would limit their right to bargain about the subcontracting of such work. JOINT BOARD OF COAT, SUIT AND ALLIED GARMENT WORKERS 737 with the contractor of the contractor's employees or that Hazantown would be "hiring" a new employee complement by sending its work to new contractors. The jobber's contract does not regulate or establish any of the working conditions for the contractor's employees and does not give Hazantown any control over the contractor's actual production operations or labor relations policy. The contractor's employees are hired and supervised directly by the contractor and the terms and conditions of their employment, includ- ing wage rates, wage increases, hours of work, and other benefits, are independently established by the contractor and the Respondent in the contractor's agreement. In addition, although the jobber is re- quired to negotiate a "piece rate" with the Respon- dent for the work which is sent to the contractor, such negotiations are not for the purpose of establishing a wage rate or a benefit scale for the contractor's em- ployees, both of which are previously established in the contractor' s agreement, but are merely for the purpose of guaranteeing that the contractor will pay its employees the full amount of the wages and bene- fits required therein. The fact that the jobber is re- quired to make contributions to the Respondent's various employee trust funds does not give the jobber sufficient control over the contractor's employees to make the jobber anoint employer of those employees. For the above reasons, we conclude that the terms of the jobber's contract do not make the contractor's employees "employees" of the jobber in the tradi- tional sense and that the bobber does not thereby be- come a joint employer of those employees.' Likewise, we do not view the Respondent's picket- ing of Hazantown as organizational merely because, as the General Counsel contends, it might have some long-range effect on the working conditions of Hazantown's own employees and would restrict their future right to bargain about subcontracting of such work. The terms of the jobber's contract are specifi- cally not applicable to Hazantown's own employees, who are still free to bargain to prohibit or limit sub- contracting of work. Moreover, any effect on the job security or wages of Hazantown's own employees is wholly speculative at the present time because Hazantown's employees do not and cannot perform any of the work performed by Hazantown's contrac- tors. Hazantown's premises are not equipped to per- 8 The cases cited by the General Counsel to support this theory are inappo- site In Local 445, International Brotherhood of Teamsters (Edward L Nezelek. inc), 194 NLRB 579 (1971), and Lively Construction Co, 170 NLRB 1499 (1968), the Board found that the unions' picketing violated Sec 8 (b)(7)(C) because the purpose of the picketing was to force the construction industry contractors not only to sign restrictive subcontracting agreements but also to hire union members for their own work forces To the contrary, in the instant case, the Respondent has not demanded that Hazantown hire any new employees either at its own premises or elsewhere form such work and its employees are not the type of employees who usually perform fabricating work. In addition, the terms of the jobber's contract do not apply to any "inside" shop which might be established by Hazantown on its own premises to perform the fabrication work. Thus, we fail to see how the terms of the jobber's contract have any real impact on Hazantown's employees.' We conclude that the Respondent did not violate Section 8(b)(7)(C) of the Act by picketing Hazantown because the picketing was not for the purpose of forc- ing or requiring Hazantown or any other employer to recognize and bargain with the Respondent as the bargaining representative of Hazantown's own em- ployees, the employees of Hazantown's present con- tractors, or the employees of the union contractors who are already represented by the Respondent and whose terms and conditions of employment are estab- lished in collective-bargaining agreements between the Respondent and the contractors. Rather, the pur- pose of the Respondent's picketing was to force Ha- zantown to agree to use contractors who had recognized and bargained with the Respondent as the representative of their employees, an object which we find to be protected by the garment industry proviso contained in Section 8(e), and not in any way prohib- ited under Section 8(b)(7). The Administrative Law Judge relied on portions of the legislative history of the garment industry pro- viso to support his 8(b)(7)(C) finding. Unlike the Ad- ministrative Law Judge, we find that the legislative history supports a contrary finding. Unquestionably, Congress intended a broad exemption of garment in- dustry unions from some of the strictures of the Act because of special problems which they had encoun- tered while organizing employees in their industry. The story has often been told of how clothing manu- facturers, in order to avoid unionization, had closed their inside shops and contracted with various outside contractors to perform the actual production work. These contractors avoided unionization by operating moveable shops which could be closed quickly and reopened at a new location with a new employee com- plement. 'The cases relied on by the General Counsel to support this contention are inapposite Thus, in The Building Trades of Philadelphia and Vicinity (Samuel E Long, Inc), 201 NLRB 321 (1973), and Dallas Building and Construction Trades Council, 164 NLRB 938 (1967), enfd 396 F 2d 677 (1968), the Board found that a union 's picketing to obtain a clause from construction industry contractors to subcontract only to unionized subcon- tractors had a direct effect on the contractor's employees because it involved work which the contractor's employees could and, on occasion, actually did perform In contrast, in the instant case, the fabricating work which the Respondent wants Hazantown to send exclusively to union contractors is not and cannot be performed by Hazantown 's employees in addition , in Long, there was testimony by a union official that, in addition to picketing for the subcontracting agreement, the union also wanted to organize the contractor's own employees 738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD To cope with this type of activity by garment indus- try manufacturers and contractors, Congress specifi- cally authorized garment industry unions to engage in otherwise prohibited'conduct for the purpose of forc- ing jobbers to execute agreements requiring them to use only union contractors. Thus, in 1949, Senator Taft assured his colleagues that the provisions of Sec- tion 8(b)(4) of the Act were not intended to apply to situations in which "the Union may attempt to per- suade the jobber's workers not to design or to cut goods to be manufactured in the shops of the non- union contractors," 10 substantially the identical situa- tion presented in the instant case. This interpretation was accepted by representatives Landrum and Griffin in 1959 when Congress was considering the Landrum- Griffin Bill's expansion of Section 8(b)(4) and the enactment of Section 8(e).11 However, as if to strengthen these assurances, Congress also enacted the garment industry proviso which on its face ex- empts unions in that industry from the provisions of Section 8(b)(4)(B) and 8(e) and therefore gives the unions a free hand to engage in secondary picketing to obtain agreements not to do business with non- union employers. The enactment of the proviso was intended to permit the unions to continue "present unionization practices throughout the integrated pro- duction process in the garment industry without being hampered by the Landrum-Griffin Act" 12 and to en- sure that "garment unions can continue to make ar- ' rangements with jobbers not to contract out work to subcontractors using nonunion labor." 13 Thus, it is clear that Congress intended to allow garment industry unions to engage in picketing and other activity which would otherwise be violative of Section 8(b)(4)(B) and 8(e) of the Act. In the same vein, the legislative history alluded to by the Adminis- trative Law Judge which characterizes the jobber and the contractor as "a single unified employer" and lik- ens the jobber to "the virtual employer of the contractor's employees" is restricted to the context of Section 8(b)(4)(B) and 8(e). This unified employer characterization was intended by Congress to serve as a rationalization for shielding the garment industry unions from the operation of Section 8(b)(4)(B) and 8(e) of the Act. However, there is no basis for the Administrative Law Judge's extension of this ration- ale to Section 8(b)(7) and his treatment of the jobber and the contractor as a single entity for all purposes under the Act. According to the Administrative Law Judge's unwarranted analysis, virtually any picketing by a garment industry union would become represen- tational or organizational merely because, whatever its real purpose, it would likely affect the employment conditions of some employees within the collection of businesses regarded as the unitary employer. We can- not agree that the expressed intent of Congress to treat garment industry unions more leniently under one section of the Act can be fairly regarded as a license to treat them more harshly under another. Congress specifically intended to allow picketing within the garment industry as evidenced by the ex- emption, of garment industry unions not only from Section 8(e) of the Act but from Section 8(b)(4)(B) as well. We believe that it would be inconsistent with such clearly expressed intention to apply the unitary employer theory to Section 8(b)(7)(C), which would considerably restrict the very activities which Con- gress intended to remain free from regulation. We do not intend our decision herein to be con- strued as holding that Section 8(b)(7) would not be applicable in the garment industry in a proper case where a specific recognitional or organizational ob- jective is shown. However, we will not deem a recogni- tional or organizational purpose to be present solely because the jobber and the contractor are regarded as a unitary employer for some purposes under the Act. Accordingly, for the aforementioned reasons, we find that the Respondent did not violate Section 8(b)(7)(C) of the Act and we shall therefore dismiss the complaint. ORDER It is hereby ordered that the complaint herein be, and it hereby is, dismissed in its entirety. 10 95 Cong. Rec. 8709 (June 30, 1949). 11 105 Cong. Rec. 14508-09 (August 13, 1959) reprinted in II Leg Hist at 1680-81. 12 105 Cong. Rec. 16428 (September 3, 1959) reprinted in II Leg. Hist. at 1446 13 105 Cong. Rec 16652 (September 4, 1959) reprinted in II Leg. Hist. at 1737 DECISION STATEMENT OF THE CASE THOMAS A. RICCI, Administrative Law Judge : A hearing in this proceeding was held at New York City, New York, on December 10, 1973, on complaint of the General Coun- sel against Joint Board of Coat, Suit and Allied Garment Workers' Unions, ILGWU, AFL-CIO, herein called the Respondent or the Union . The complaint, issued on No- vember 7, 1973, is based on a charge filed on October 16, 1973, by Hazantown, Inc., here called the Charging Party. The issue presented is whether in picketing the business premises at Hazantown in New York City the Respondent violated Section 8(b)(7)(C) of the Act. Briefs were filed after the close of the hearing by all three parties. Upon the entire record, and from my observation of the witnesses, I make the following: JOINT BOARD OF COAT, SUIT AND ALLIED GARMENT WORKERS FINDINGS OF FACT I THE BUSINESS OF HAZANTOWN Hazantown, Inc., a New York State corporation, has its office and place of business in New York City, New York, where it is engaged in the importation , manufacture, sale, and distribution of apparel and related products. During the past year, a representative period, in the course of its busi- ness it purchased products valued in excess of $500,000, of which products valued in excess of $50,000 were shipped directly to it from States other than New York. I find that Hazantown is engaged in commerce within the meaning of the Act and that it will effectuate the policies of the Act to exercise jurisdiction herein. II THE LABOR ORGANIZATION INVOLVED Joint Board of Coat, Suit and Allied Garment Workers' Unions, ILGWU, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III THE UNFAIR LABOR PRACTICES There is no dispute in this case as to the pertinent facts; the very short record of hearing consists more of repetitive debate by the competing lawyers as to how to describe or characterize the unquestioned and largely stipulated facts, than testimony.' What must be decided is a pure question of law. A. The Facts Hazantown makes and sells garments of various kinds. It's only place of business is in Manhattan, New York City, where it employs a designer, a patternmaker, a marker or two, a sample hand, some shipping clerks, and office cleri- cals. The first few of this small group create new fashions, make patterns for each new garment, prepare markers which are pattern cuts for the various dress sizes to be used later in cutting cloth on a larger scale, and even produce some few completed garments to be used as samples, either for exhibition to wholesale buyers or for use by the contrac- tors, located in Pennsylvania and New Jersey, who later produced the garments for Hazantown in large quantity orders. When the finished garments are sent back to New York they are received by the shipping clerks who then send merchandise out to the retail customers who have bought them. Because the Hazantown Company has all its gar- ments fabricated-sewed, finished, and pressed-by other companies, it is called a jobber in the established jargon of the garment industry. Its contractors are located outside of New York City. They directly employ cutters, sewing machine operators, special machine operators, finishers, examiners , pressers, 1 In addition to the transcript of Board hearing , totaling 68 pp , the parties jointly placed in evidence a 50-page transcript of hearing held in the United States District Court for the Southern District of New York. where the General Counsel petitioned for and obtained an injunction against the Union's picketing pursuant to Sec 10(1) of the statute 739 etc., who together produce the completed garments starting from scratch. The raw material, cloth owned by Hazan- town, is shipped to the contractors on order of Hazantown, from other locations, and the completed garments are then trucked to New York City. These companies, called con- tractors because they never themselves own the cloth or the garments, deal at arm's-length with Hazantown, or with any other jobber who might want to do business with them in like fashion. In the fall of 1973 neither Hazantown's employees in New York, nor the employees of its several contractors in Penn- sylvania and New Jersey, were represented by any labor organization. On about September 13, 1973, two agents of the Respondent Umon (Saslow and Fradkin) called on Maurice Cohen, the president of Hazantown, and asked him to sign a contract with the Union, adding that if he refused to do so the Union would strike his premises in New York. Cohen did not sign and on September 17 the Union began to picket in front of Hazantown's place of business with signs reading: Strike Hazantown Marry Allen Payne Joint Board of Coat, Suit, Skirt and Reefers Reefers Makers' Unions, ILGWU, AFL-CIO On October 18 the Union wrote to Cohen , repeating its request that he sign a contract . The picketing continued into November ; it ceased only when enjoined by the Federal district court . There is documentary evidence , uncontro- verted, that substantial deliveries of goods to Hazantown were not made by shipping companies during that 2-month period because of the Union's picket lines. The contract, a comprehensive 40-page document, which the union so adamantly insisted Hazantown sign, was re- ceived in evidence by stipulation. B. Contentions, Analysis, and, Conclusions As stated, there is no dispute as to the facts set out here thus far. The contract in question-Respondent's Exhibit No. 11-is a collective-bargaining agreement. I therefore find that by picketing for about 2 months to force Hazan- town to sign that contract, the Respondent Union violated Section 8(b)(7)(C) of the Act as charged in the complaint.' The present statute, sometimes called the Taft-Hartley Act with Landrum-Griffith Amendments, contains a num- ber of proscriptions against picketing, and in many cases the legality or illegality of the picketing turns upon an inquiry into its purpose-wage raise demand, publicity, secondary objective, organizational or recognitional purpose, etc. In this case the picketing is called unlawful on the ground that it is prohibited by Section 8(b)(7)(C), which, in pertinent part, reads as follows: Sec. 8(b) It shall be an unfair labor practice for a labor organization or its agents- 2 It was conceded that the Respondent was not a certified union, and that no election petition was ever filed. 740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD * * * (7) to picket or cause to be picketed, . . . any employer where an object thereof is forcing or requiring an em- ployer to recognize or bargain with a labor organiza- tion 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-bar- gaining representative, unless said labor organization is currently certified as the representative of such em- ployees: * (C) where such picketing has been conducted without a petition under section 9(c) being filed within a rea- sonable period of time not to exceed 30 days from the commencement of such picketing: All picketing calls upon the picketed employer to do something, or to cease doing something, as a condition pre- cedent to withdrawal of the picket by the union. In one case a certified union insists on the wage increase it could not persuade the employer to give across the bargaining table. In another it requires a promise-written or oral-to stop doing business with some other companies. Here, the an- swer to the ever-present question in the picketing situation is clear in the contract which the Union wanted Hazantown to sign. It was either sign this contract or the picketing will not cease. Of course, the answer to the question does not end there. As the Respondent would have it, there is no occasion to go beyond the simple statement: "The Union wanted a contract." Its counsel gives the contract a number of names-a jobber's contract, a production contract, a garment contract, even a hot cargo contract and argues that is an end to the matter. But what the Union wanted Hazantown to do is what the contract would have obligated it to do; prove , the purpose prohibited by Section 8(b)(7)-"requiring an employer to recognize or bargain with a labor organization." It is enough, however, for pur- pose of fitting this case into the statutory proscription, to appraise a single provision. Article fourth, piece rate, in- cludes the following language: 3. Piece rates for all garments made by or for the Employer in his contractors' shops shall be settled on the Employer's premises. Piece rates for suit skirts shall be settled at the same time and in the same manner where the piece rates fbr the coats and jackets are set- tled. 4. The Employer or his representative, representa- tives of all the workers employed in his contractors' shops and a Union representative shall participate in the settlement of piece rates. Immediately after the execution of this agreement, there shall be established a panel of experts, the members of which shall be se- lected jointly by the Union, the New,York Coat and Suit Association, Inc., and the Infants' and Children's Coat Association, Inc., from which the Employer and the Union may mutually select a member to resolve any dispute which may arise in the settlement of piece rates. The word "Employer" in this language refers to Hazan- town, and the word "settle" means to negotiate and agree on. Cohen, of the Company, said he has no idea in what manner and how much his present contractors pay their help. All he does is agree on a set price for having each garment made, and from that point on the contractor does as he pleases with his employees, pays them as he can or wishes, profit or no profit. Under the Union's contract with him, all employees who would thereafter work on his gar- ments could work only on a piece work basis, and would be paid no more and no less than the amount negotiated in each particular instance between Hazantown and the Union. Exclusion of the contractor, from the bargaining process whereby the pay rate of the employees would be determined is clear. Indeed, any question on that score is completely removed, by a look at the Union's contract with all unionized contractors. That contract, also received in evidence, contains the following: Article Twelfth: Piece Rates 1. (a) piece rates on all garments covered by this agreement, including suit skirts, which are to be manu- factured by the Employer [here the contractor] for a manufacturer or jobber must first be settled by the Employer's manufacturer or jobber and the Union be- fore such garments are put into work, in accordance with the provisions, rules, regulations and procedures, relating to settlement of piece rates provided in the collective bargaining agreements between, Union and New York Coat and Suit Association, Inc., and Infants' and Children's Coat Association, Inc. (b) Only the manufacturer or jobber and his represen- tatives, the representatives of all of the workers em- ployed on his premises, in his inside shop and in the Employer's shops who manufacture the same gar- ments, and a Union representative shall participate in the settlement of the piece rates. There are other conditions of employment-including economic matters such as overtime, holidays, vacations, in- surance, etc.-which are also provided for on behalf of the machine operators, hand sewers and other categories of employees who make dresses in the garment industry. But it is too late in the day to have to explain why the piece rates at which piece workers will be paid is a mandatory and very JOINT BOARD OF COAT, SUIT AND ALLIED GARMENT WORKERS 741 substantive subject of collective bargaining that goes to the heart of "conditions of employment," as that phrase ap- pears in this statute. What the Respondent was saying to Hazantown, via the jobber contract it insisted he sign, was "You will bargain with us, only us, as to conditions of employment of any employee who works on your garments, and never mind any relationship such employees may have with any contractor, or even whether or not they wish to be represented by us." But Section 8(b)(7) says a union may not picket in these circumstances to force an employer "to bargain." So much for that portion of the statute.' In arguing for dismissal of the complaint the defense illogically confuses two concepts. What seems to appear from the various memoranda submitted by the Union is a contention that the right of a union in the garment industry to strike for recognition is but an integral aspect of such a labor organization's prerogative to strike for a hot cargo contract, under a proviso to Section 8(e) of the Act. The proposition, and it's inherent fallacy, will be understood best by unequivocal reference to two of several fundamental concepts that form the basic structure of this entire statute. One, the more important of the two, is that employees have a right to choose, to elect, or to authorize-however, the matter be put-a union to act as their bargaining agent, but simultaneously have no less a right to refuse to be repre- sented, or to "refrain" from being represented. The second concept involves the respective rights of separate or neutral individual employers to be free from involvement in the labor disputes of other companies; this is the secondary boycott or hot cargo idea. These two ideas bear very little relationship to one another-one is concerned with employ- ee rights and the other with employer rights. The Union in this case points to other clauses in its jobber contract, clauses which would bind Hazantown not to send any garments for fabrication to nonunion shops, or to do business only with contractors whose employees are cov- ered by ILGWU contracts. This is clearly pressure on one company to cease doing business with somebody else; in fact it is the classic form of secondary boycott-Hazantown uses nonunion out-of-town contractors to have its dresses made, and the Union, unhappy at being unable to convince the distant employee of such contractors to join the ILG- WU, hits the neutral supplier of work in New York City instead. The Board's reported decisions over the years are full of unfair labor practice findings based exactly on such a set of facts. There are none such, however, since 1959, in the garment industry, and this is because of the proviso of Section 8(e) enacted in that year. It reads as follows: 3 It would be superfluous and unduly lengthen this decision to add like comments respecting other provisions in the jobber contract that also mean bargaining between Hazantown and the Union on other conditions of em- ployment for the same employees Thus, Hazantown would have to agree with the ILGWU as to the insurance cost of disability benefit to be enjoyed by the employees, semi-annual bonuses to them all , a substantial amount- I1 55 percent of its total payment to the contractor , but not de- ducted from the contractor payment, all to be paid directly to the Union's trust funds, under which the employees would receive health and welfare, retirement, and other direct benefits. (e) It shall be an unfair labor practice for any labor organization and any employer to enter into any con- tract or agreement, express or implied, whereby such employer ceases or refrains or agrees to cease or refrain from handling, using, selling, transporting or otherwise dealing in any of the products of any other employer, or to cease doing business with any other person, and any contract or agreement entered into heretofore or hereafter containing such an agreement shall be to such extent unenforceable and void: . .. Provided further, That for the purposes of this subsection (e) and section 8(b)(4)(B) the terms "any employer", "any person en- gaged in commerce or in industry affecting com- merce", and "any person" when used in relation to the terms "any other producer, processor, or manufactur- er", any other employer", or "any other person" shall not include persons in the relation of a jobber, manu- facturer, contractor, or subcontractor working on the goods or premises of the jobber or manufacturer or performing parts of an integrated process of produc- tion in the apparel and clothing industry: Provided fur- ther, That nothing in this Act shall prohibit the enforcement of any agreement which is within the fore- going exception. If the contract which Hazantown was required to sign did nothing more than bind him to "cease doing business" with some other companies-no matter what kind-this would be another case, it would be a secondary picketing com- plaint, if any, and I suppose the proviso to Section 8(e) would insulate the ILGWU action vis-a-vis this garment jobber. And it would be a "cease doing business" type of secondary pressure regardless of whether the picketing union says: "stop doing business with nonunion contrac- tors," or "do business only with union contractors." With- out coherent explanations, the Union in the middle of this argument that the secondary boycott exception extends to Section 8(b)(7)(C), does a flip-flop and says it did not want Hazantown to "cease doing business" with anybody, all it wanted was that whoever the contractors might be, the workers in those shops had to be covered by ILGWU con- tracts. This kind of double talk merits no comments. It is true the Union wanted all contractors' employees to be covered by union contracts; it is true the Union wanted all persons who work in contracting shops and who make the dresses paid adequate, higher, or union wages and fringe benefits; and it is true it wanted Hazantown to stop having his work done in any shop which did not observe all of these standards. But no amount of talk, no amount of emphasis upon other clauses in the 40-page jobber contract, can obli- terate the plain fact it spells out in the clearest language possible the demand that Hazantown bargain with the Union about the employees' conditions of employment, that it literally "recognize" the Union as bargaining agent of those employees. The Respondent restates what is essentially the same de- fense by pointing to the word "his" in Section 8(b)(7). It 742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD contends that because the machine operators, sewers, etc., who actually work on the dresses in Pennsylvania and New Jersey are employed by the contractor, they are not "his," i.e., Hazantown'$, direct employees, and therefore it cannot be said the Union wanted to be recognized as the "represen- tative of his [Hazantown's] employees." The argument could be rejected summarily if only because the very next phrase in the statute does not limit its applicability. The section also prohibits picketing which is aimed at "forcing or requiring the employees of an employer to accept or select such labor organization as their collective-bargaining representative." (Emphasis supplied.) Here the word "an" shows a concern with employees generally, regardless of any technical aspect of their hiring arrangements. I think, how- ever, that the defense is invalid for more substantive rea- sons.4 The Union does not like the manner in which the contrac- tors' employees are being paid, or the amount-whether direct wages or fringe benefits-they are receiving in com- pensation for their work. It wants to be the effective voice on their behalf to deal with somebody in determining these conditions of employment. In short, it wants to represent them. If in order to achieve this objective it had picketed the shops of nonunion contractors-without being certified, without filing a petition, and for 2 months-the picketing would absolutely have been unlawful. No question there about who "his" employees are, or about bargaining and representing being the purpose of the picketing. All the Union is seeking to do here is achieve the same prohibited objective-representing employees against their will-indi- rectly. Either way, picketing the contractor or the jobber, it trenches upon the right of the employees themselves to de- cide whether they wish to "join," or to "refrain" from join- mg, a labor organization. In Drivers, Chauffeurs, and Helpers Local 639 (Curtis Brothers), ,119 NLRB 232 (1957), the Board considered whether this kind of picketing violated Section 8(b)(1)(A) of the Act, and said, that it did. The holding was reversed in the Supreme Court in 326 U.S. 247 (1960). By that time Section 8(b)(7) had been enacted into law-part of the so- called 1959 Landrum-Griffith Amendments. The court made clear it was holding the picketing as not prohibited by Section 8(b)(1)(A), but that it was not thereby passing upon the meaning of the new Section 8(b)(7). The Court recog- nized, moreover, that "That Act [the 1959 amendment] goes beyond the Taft-Hartly Act to legislate a comprehensive code governing organizational strikes and picketing and draws no distinction between `organizational' and `recogni- tional' or picketing." And the legislative history of the sec- tion here in question leaves no doubt it was intended to sustain the Board's view that this kind of picketing be pro- hibited-albeit now by virtue of Section 8(b)(7) instead of Section 8(b)(1)(A). From the House Conference Report, September 3, 1959: "Section 8(b)(7) overrules the Curtis and Alloy cases to the extent that those decisions are inconsistent with Section 8(b)(7)." 5 Interspersed with his constant repetition that the contrac- tor is a neutral, completely independent entrepreneur, and therefore in no way involved with this jobber picketing or jobber contract, counsel for the Union keeps referring to Hazantown picketing as "primary" activity,, and not "sec- ondary" at all. How, the contractor shop in another State could be neutral and the jobber in New York be primary and not secondary, when it is always the same cadre of contractor's employees who are the Union"s sole concern, is not explained, as, of course, it could-not be. To drag the proviso of Section 8(e) into this 8(b)(7) case, the Union then highlights the unified character of the garment industry, and the importance given that reality in the legislative history. And the proponents of the proviso did say "the jobber is in economic reality the virtual employer of the workers in the contractor's shops." "They [jobber and contractor] are allies ... not to be deemed separate employers, but, rather, a single unified employer... , " In the next breath, the Union again separates the two-Hazantown and the out-of- town contractor-and calls them neutral to one another, in order to squirm out of the strictures of Section 8(b)(7). There is no intelligible way of responding to an incoherent argument. It may be true that there is something so unique in the established method of producing dresses and suits in the garment industry that the entire, operation may be called "an integrated process of production," as it is referred to in the legislative history of Section 8(b)(4) and 8(e). And this is why the two employers-contractor and jobber-are considered as one for purposes of taking the ILGWU out of the secondary boycott provisions of the statute. But if the two ought to be considered as one, it follows that neither can be picketed to compel recognition in defiance of the desires of any of the employees involved in the "integrated process." CONCLUSIONS OF LAW 1. Hazantown, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Joint Board of Coat; Suit and Allied Garment Work- ers' Unions, ILGWU, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By picketing the premises of Hazantown, Inc., in New York City, on September 17, 1973, and for almost 2 months thereafter, with an object of forcing or requiring that com- pany to recognize or bargain with it as representative of employees who work in contractors' shops on Hazantown's 4 The Respondent's emphasis at the hearing that it does not accept into) membership Hazantown's designer, patternmakers, or shipping clerks, to support the defense based on the statutory work "his," was made tongue-in- cheek. There are other locals or subdivisions of the ILGWU which formally represent these categories of employees, and the clearest thing shown by the various contracts received in evidence , is that in the garment industry in the New York area, it is all one ball of wax-all contracts are tied together, all ILGWU members are united, and it is for all practical purposes one union. 5 The Alloy case (International Association of Machinist, Lodge 942, 119 NLRB 307, 236 F.2d 796 (C A. 9) cert denied 362 U.S 940), was virtually a companion decision at the Board level with the Curtis case. In Alloy the Board pro forma adopted a Trial Examiner's decision that the picketing for recognition, after the Union had lost a Board election , violated Section 8(b)(1)(A) The circuit court did not reach the question, it enforced on this point solely because the respondent had not filed proper exceptions before the Board. JOINT BOARD OF COAT, SUIT AND ALLIED GARMENT WORKERS 743 garments, without being currently certified as the represen - 4. The aforesaid unfair labor practices are unfair labor tative of such employees and without filing a petition under practices within the meaning of Section 2(6) and (7) of the Section 9(c) within a reasonable period of time , Respondent Act. engaged in unfair labor practices within the meaning of [Recommended Order omitted from publication.] Section 8(b)(7)(C) of the Act.