Dee Knitting Mills, Inc.

650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Dee Knitting Mills, Inc., Dippy Knits, Inc., Three D Knitting Mills, Inc., D & S Knitwear, Inc., and Sal- vatore Dibartolo, Individually andInternational La- dies' Garment Workers' Union, 'AFL-CIO. Case 29-CA-3879 April 30, 1975 DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY, AND PENELLO On December 19, 1974, Administrative Law Judge John G. Gregg issued the attached Decision in this proceeding. Thereafter, the General Counsel and the Charging Party filed exceptions and supporting briefs. 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 has decided to affirm the rulings,' findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dismissed in its entirety. 1 The General Counsel and the Charging Party have 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 rele- vant 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 revers- mg his findings. DECISION STATEMENT OF THE CASE JOHN G. GREGG, Administrative Law Judge: On May 31, 1974, the International Ladies' Garment Workers' Union, AFL-CIO, filed an unfair labor practice charge alleging vio- lation by the Respondents of Section 8(a)(1) of the National Labor Relations Act, 29 U.S.C. 151, et seq. On July 31, 1974, the Regional Director, Region 29 of the Board, issued a complaint and notice of hearing upon the charge. The Re- spondent thereafter duly filed an answer denying the commis- sion of unfair labor practices. Pursuant to notice a hearing was held before me at Brook- lyn, New York, on October 21, 1974. The parties were repre- sented by counsel, and were afforded full opportunity to be heard, to introduce material evidence, to present oral argu- ment, and to file briefs. Upon consideration of the entire record and observation of the demeanor of the witnesses as they testified,- I make the following: FINDINGS OF FACT I THE BUSINESS OF THE RESPONDENTS Dee Knitting Mills, Inc., Dippy Knits, Inc., and Three D Knitting Mills, Inc., are corporations duly organized under and existing by virtue of the laws of the State of New York. At all times material herein, Dee Knitting Mills, Inc., has maintained its principal office and place of business at 1650 New Highway, in the Town of Farmingdale, County of Suf- folk, State of New York, where it is, and has been at all times material herein, engaged in the manufacture of sweaters and related products. At all times material herein, Dippy Knits, Inc., has main- tained its principal office and place of business at 1650 New Highway, in the Town of Farmingdale, County of Suffolk, State of New York, where it is, and has been at all times material herein, engaged in the wholesale distribution of sweaters and related products. At all times material herein, Three D Knitting Mills, Inc., has maintained its principal office and place of business at 1650, New Highway, in the Town of Farmingdale, County of Suffolk, State of New York, where it is, and has been at all times material herein, engaged in the fabrication of knit goods and related products. Dee Knitting Mills, Inc., Dippy Knitting, Inc., and Three D Knitting Mills, Inc., has and at all times material herein has been, affiliated business with common officers, owner- ship, directors, and operators, and constitute a single inte- grated business enterprise; the said directors and operators formulate and administer a common labor policy for the aforenamed companies, affecting the employees of said com- panies, and are point employers. During the past year, which period is representative of its annual operations generally, the aforementioned corpora- tions in the course and conduct of their business, purchased and caused to be transported and delivered to its places of business, wool, yarn; and other goods and materials valued in excess of $50,000, of which goods and materials valued in excess of $50,000 were transported and delivered to its place of business in interstate commerce directly from states of the United States other than the State in which it is located. D & S Knitwear, Inc., is a corporation duly organized under and existing by virtue of the laws of the State of New York. At all times material herein Respondent D & S has main- tained its principal office and place of business at 97 Wyckoff Avenue, Borough of Brooklyn, in the city and State of New York, where it is, and has been at all times material herein, operated as a contractor engaged in the wholesale finishing of knitted sweaters and related services, for Dee Knitting Mills, Inc., Dippy Knits, Inc., Three D Knitting Mills, Inc., and other employers. During the past year, which period is representative of its annual operations generally, Respondent D & S Knitwear, 217 NLRB No. 119 DEE KNITTING MILLS, INC. Inc., in the course and -conduct of its business operations, performed services valued in excess of $100,000, of which services valued in excess of $100,000 were performed in and for various enterprises including Dee Knitting Mills, Inc., Dippy Knits, Inc., and Three D Knitting Mills, Inc., which enterprises annually produce goods valued in excess of $50,000 which are shipped directly out of the State wherein said enterprises are located. The aforementioned corporations, Dee Knitting Mills, Inc., Dippy Knits, Inc., Three D Knitting Mills, Inc., and D & S Knitwear, Inc., and each of them are and have been at all times material herein employers engaged in commerce within the meaning of Section 2(2), (6), and- (7) of the Act. Salvatore Di Bartolo, hereinafter called Respondent Di Bartolo, is and has been at all times material herein, the vice president and director of Three D, acting on its behalf, and an agent thereof. Salvatore Di Bartolo is, and has been at all times material herein, the president and sole owner of D & S, acting on its behalf, and an agent thereof. Salvatore Di,Bartolo is, and has been at all times material herein, an agent of the foregoing Dee Knitting Mills, Inc., Dippy Knits, Inc., Three D Knitting Mills, Inc., and D & S Knitwear, Inc., acting on their behalf. II THE LABOR ORGANIZATION INVOLVED International Ladies' Garment Workers' Union, AFL-CIO, is, and at all times material has been, a labor organization within the meaning of Section 2(5) of the Act. III THE ALLEGED UNFAIR LABOR PRACTICES The unfair labor practice alleged is that Salvatore Di Bar- tolo an officer and agent of the Respondents herein, verbally abused and physically assaulted Ellen Watson, a union organ- izer who was engaged in picketing the premises of D & S Knitwear, Inc., and knocked her to the ground thereby vi- olating Section 8(a)(1) of the Act. The record discloses that on or about May 16, 1974, the Union herein in furtherance of its labor dispute with the employers herein caused the premises of D & S Knitwear, Inc., to be picketed by some 30 individuals , allegedly em- ployees and representatives and agents of the Union herein, including Union Organizer Ellen Watson. ]Barbara Laufman, an organizer for the Union herein testi- fied that she was a former employee of Dee Knitting Mills and had been fired and later refused reinstatement. Laufman testified essentially that she engaged in the picketing on May 16, 1974, with about 15 or 20 other pickets, including Ellen Watson, an organizer, Ed Banyai, business manager of Local 107, and several other organizers . The other pickets accord- ing to Laufman were "people from other Locals in New York," including both rank-and-file members and officers. According to Laufman they picketed the building which was on the corner of Wykoff and Hart Streets with the pickets walking in a circle or square each roughly 2 feet apart, and about 3 feet from the building. Q. While you were picketing did anyone attempt to your knowledge to block the entrance or any entrance to that building, D & S Knitwear? 651 A. No, you couldn't. Q. Did anyone threaten anybody, any pickets threaten anybody who was trying to enter? A. No. Q. Did any pickets to your knowledge use any force on anyone trying to enter or anyone approaching the building? A. Not that I saw. Laufman testified essentially that at 7:20 a.m. Salvatore Di Bartolo and his wife approached the picket line, that she became aware that he came into the middle of the picket line and started to yell "Get out of here you bums" and things to that effect. Q. What did he do? A. Well, he was like trying to go this way and that way and he didn't know which way. He just kept yelling "Get out of here, I'm going to call the police," and a couple of people turned around and said, "go ahead, we are not doing anything" because we kept moving and we had the picket signs. Laufman stated that Di Bartolo was very aggravated, said he was calling the police, and headed for the gas station which was diagonally opposite the building. As he went through the moving pickets according to Laufman he had his arms up as though he would not let anybody stop him, "he was going through the line and there was room for him to go through." According to Laufman no one tried to stop Di Bartolo, and as Ellen Watson rounded the turn on the picket line "he banged into her and he knocked her off balance." Laufman stated that Di Bartolo threw his arm out and struck Watson in the area of the chest. According to Laufman, Watson fell into the street and landed on the side of her head. The police came and Watson was taken to a hospital. On cross-examination Laufman stated that when Di Bar- tolo came into the picket line he faced the building and was talking to the pickets. However, she would not state that she saw him do this but only that she heard his voice, that he may have been talking to two or four individuals at the time. There was testimony of record by Ellen Watson who stated that she was an employee of the Union herein, that she par- ticipated in the picketing of Respondent's premises on May 16, 1974, that she did not carry a sign. Watson stated the pickets went around in a circle, that Di Bartolo appeared around 7:15 a.m., that he became excited and walked into the picket line, into the circle. Watson stated that at that time she said "that is Di Bartolo, there he is." According to Watson, Di Bartolo demanded to know what these people were doing there, became very excited, and stated he was going to get the police. According to Watson as Di Bartolo walked out toward the curb he shoved her off into the street. "He just-well, he just barrelled his arms I could say. I wasn't watching him. I dust didn't stand there watching him come up and shove me but I think he just walked through." Watson stated that she started shouting at Di Bartolo to the effect that he could not shove people around. She stated that she did not hear anyone threaten him, nor see anyone hit Di Bartolo. According to Watson, Di Bartolo then hit her with a swinging motion and knocked her down. 652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD There was testimony by Salvatore Di Bartolo, wherein he stated essentially that he became aware of the picketing for the first time when he arrived at the plant as usual that morning with his wife, that he followed his normal routine and attempted to enter the building by going between the picket line and the wall of the building. Di Bartolo heard someone say "that is the man." As he approached the en- trance he was blocked by three of the individuals who told him he could not go in as "there is a strike." Di Bartolo testified that he told these individuals he was going to enter his' place and said he would call the police. According to Di Bartolo the men were yelling at him. He started away to cross the street, trying to avoid the pickets, when Watson approached him and tried to grab his shoulder while screaming at him. According to Di Bartolo he told her he was going to summon the police and "I went through." He then crossed the street and called the police. According to Di Bartolo he did not touch Watson with his hands, did not push or strike her. Di Bartolo's testimony was essentially corroborated by the testimony of his wife Antonietta Di Bartolo. i Discussion, Findings, and Conclusions Section 8(a) of the Act declares that "it shall be an unfair labor practice for an employer . . . (1) to interfere with, restrain or coerce employees in the exercise of the rights guaranteed in Section 7... ." Based on my observation of the witnesses as they testified my credibility findings as ex- plicated herein, and the record as a whole, I am convinced that in the circumstances of this case Di Bartolo's conduct does not amount to a violation of Section 8(a)(1) of the Act. In essence Watson's testimony portrays Di Bartolo's con- duct as one of a deliberate, intentional assault on her person. This testimony is corroborated by several of her associates On the other hand Di Bartolo's testimony portrays his ac- tions as that of an individual restrained and harrassed by the pickets and seeking only to move away in order to summon the police. This testimony is corroborated by his wife. Based on my observation of the demeanor of the witnesses as they testified, I credit the testimony and version of the incident as portrayed by Di Bartolo and his wife. While his command of English was indeed limited, Di Bartolo impressed me as a straightforward, sincere witness describing the events as he participated in the drama. I was not similarly impressed by Watson as she testified and am convinced that in her tes- timony concerning the alleged direct assault by Di Bartolo she was less than candid. I do not credit her testimony in this regard nor the corroborating testimony of her associates in- cluding organizer Laufman who also did not impress me as testifying candidly. Accordingly I am convinced and I find that in his conduct which is the subject of the complaint herein, Di Bartolo at most, brushed past a picket who was engaged in harrassing him and that under such circumstances, even assuming that such conduct amounts to a technical assault, such conduct does not amount to such interference, restraint , or coercion as to achieve the status of a violation of Section 8(a)(1) of the Act. As I have found that credible evidence does not establish that the Respondent violated the Act as alleged in the com- plaint, I shall recommend that the complaint be dismissed in its entirety. CONCLUSIONS OF LAW 1. The Respondents are employers engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Ladies' Garment Workers' Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. The Respondents have not engaged in the unfair labor practices alleged in the complaint. [Recommended Order for dismissal omitted from publication.]