Distributive Workers of America

616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD District 65, Distributive Workers of America (M. Lowenstein & Sons, Inc.) andConcord Fabrics, Inc. Case 2-CC-1313 DECEMBER 13, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On July 29, 1974, Administrative Law Judge Arnold Ordman issued the attached Decision in this proceed- ing. Thereafter, the Respondent filed exceptions and a supporting brief. The Charging Party filed a letter with an attachment in response to the brief submitted by Respondent. 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 attached Decision in light of the exceptions and briefs and letter with attachment, and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. 1974. Briefs were received from General Counsel on June 24, 1974, and from District 65 on July 12, 1974. On the entire record, my observation of the witnesses, and after consideration of the briefs, I make the following: FINDINGS AND CONCLUSIONS I JURISDICTION Concord is a New York corporation with an office and place of business at 1411 Broadway in New York City and with places of business in other States of the United States. Concord is engaged in the business of converting textile fab- rics and related products More than $50,000 worth of its goods move annually in interstate commerce. M. Lowenstein & Sons, Inc., is also a New York corpora- tion with an office and place of business at 1430 Broadway in New York City and places of business in other States of the United States. Lowenstein is engaged in the business of manufacturing, selling, and distributing fabrics, and convert- ing textile fabrics and other products. More than $50,000 worth of its goods also move annually in interstate commerce. I find that Concord and Lowenstein are employers engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act I find further on admitted allegations that District 65 is a labor organization within the meaning of Section 2(5) of the Act Jurisdiction is properly asserted in this proceeding. 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 Respondent, District 65, Distributive Workers of America, New York, New'York, its officers, agents, and representatives, shall take the action set forth in said recommended Order. DECISION STATEMENT OF THE CASE ARNOLD ORDMAN: The issue in this case is whether Re- spondent, District 65, Distributive Workers of America, herein called District 65, engaged in a secondary boycott in violation of Section 8(b)(4)(i) and (ii)(B) of the National La- bor Relations Act, as amended, when it picketed Textile Mart, a facility owned by M. Lowenstein & Sons, Inc., herein called Lowenstein, in the course of a labor dispute District 65 had with Concord Fabrics, Inc., the Charging Party herein. District 65 defends on the ground that Lowenstein "stands in the shoes" of Concord Fabrics and may be picketed as a primary employer. Concord Fabrics, Inc., herein called Concord, filed its un- fair labor practice charge against District 65 on February 20, 1974, and complaint issued thereon on April 23, 1974 Dis- trict 65 filed its answer to the complaint on May 16, 1974. Hearing was conducted in New York, New York, on May 23, 11 THE UNFAIR LABOR PRACTICES A. The Relevant Evidence One of the several enterprises operated by Concord was a warehouse in North Bergen, New Jersey, where it performed folding and refolding work and employed during the period here relevant a complement of about 75 employees. These employees were represented for purposes of collective bar- gaining by District 65 and their most recent collective-bar- gaining agreement had an expiration date of June 30, 1973. In the spring of 1973 before bargaining negotiations for a new agreement began, Concord informed District 65 that it was contemplating farming out its folding and refolding work which would result in the dismissal of warehouse employees. District 65 indicated that it would oppose that action In the ensuing bargaining negotiations, Concord explained that the work it was doing could be done on the outside at considera- bly less cost. The bargaining negotiations were unproductive and the then current collective-bargaining agreement expired on June 30, 1973, with no new agreement being reached. On July 6 or 7, 1973, District 65 received a communication from Concord that the latter was terminating its warehouse operation and was going to farm out that work. Concord further stated that it wanted to bargain as to the effects of that termination on the warehouse employees. Further bargaining negotiations were again fruitless. On or about July 9, 1973, Concord released about 55 of the employees at its North Bergen warehouse, retaining about 20 to wind up its operations On or about August 17, 1973, Concord terminated the remaining 20 employees and ceased 215 NLRB No. 120 DISTRICT 65, DISTRIBUTIVE WORKERS 617 its warehousing operations at North Bergen completely.' The work which had been done there was contracted out to other enterprises. Since closing down its North Bergen opera- tion, Concord has sold most of the equipment used there and has made extensive efforts to sublet the warehouse, or to effect a cancellation of the long-term lease under which it held that property. Notwithstanding the termination of the North Bergen op- eration, negotiations between Concord and District 65 con- tinued, still without success, and on or about September 7, 1973, 3 weeks after the shutdown, District 65 initiated a strike against Concord which, so far as appears, is still con- tinuing. District 65 did not limit its efforts to action merely against Concord. On the same day it began its strike against Concord, September 7, District 65 established a picket line at S.N.S Distributing Service in Carlstadt, New Jersey, an enterprise to which Concord had contracted out some of its refolding work That picketing became the subject matter of a separate injunction and unfair labor practice proceeding brought against District 65, alleging an unlawful secondary boycott ' In the course of the injunctive proceedings in that case, District 65 learned that much of the folding and refolding work formerly done by Concord was now being done in Lyman, South Carolina by the Lyman Printing & Finishing Company, a division of M. Lowenstein & Sons, Inc Accordingly, by letter dated November 23, 1974, District 65 notified the Lyman company that District 65 had been on strike for several months against Concord, that the Lyman Company was doing work formerly done by Concord before the latter's shutdown of its New Jersey facility, and that, as such, the Lyman Company was doing "struck" work. The letter further stated that unless that work was terminated immediately, District 65 would have "no choice but to set-up [sic] picket lines in front of your establishment and notify the public that you have become an `economic' ally of Concord Fabrics." The Lyman Company responded by letter dated November 28, 1973, that it had been doing Concord wprk for many years and would continue such services as called upon. The letter stated further the Lyman Company was not an "economic ally" of Concord Fabrics and that, if District 65 illegally interfered with the Lyman operations, District 65 would be held answerable for all damages flowing therefrom.' I At the same time Concord also ceased the warehousing operation it had in Los Angeles, California 2 A full account of that situation is set forth in the Board's recent decision in District 65, Distributive Workers ofAmerica (S NS Distributing Service), 211 NLRB 469 (1974) The Board there found District 65 to have violated Section 8(b)(4)(i) and (u)(B) of the Act 3 In fact, the Lyman Company had been doing some work for Concord for many years, dyeing, printing, and finishing Concord goods and shipping them to Concord customers at Concord's direction Late in February or March 1973, in response to a general inquiry from Concord, the Lyman Company told Concord it would also be interested in doing Concord's folding and refolding work, and quoted its price range for that work No mention was made at that time that Concord was planning to discontinue its North Bergen facility On July 9 or 10, 1973, at or about the time Concord cut back its North Bergen operation, Concord negotiated a verbal agreement, terminable at will, with the Lyman Company, whereby the latter added folding and refold- ing work to the operations it previously performed for Concord The Lyman Company had no bargaining relationship with District 65 and its first con- At some point during this period District 65 learned of the existence of another Lowenstein facility located at 246 W. 40th Street in New York City, known as the Textile Mart. Textile Mart operated a showroom and shipping and receiv- ing department at this location. The business of Textile Mart was to display "off-goods" or "seconds" in its showroom in the form of rolls or bundles. Customers would make their selection of fabrics from this display, salesmen would write up their orders, and the orders would be prepared, packed, and shipped from the shipping and receiving department. William Pollara was responsible for the physical maintenance of the Textile Mart facility, and was in direct charge of the shipping and receiving department, which had a complement of about 12 employees The events which form the gravamen of the unfair labor practices alleged in the complaint occurred at this location On or about February 20, 1974, 6 months after Concord ceased its operations at North Bergen and 5 months after District 65 began its strike against Concord, District 65 estab- lished a picket line, consisting of two pickets, at the Textile Mart facility. The picket sign carried by the pickets stated that Lowenstein was an economic ally of Concord whose employees were on strike. Under this statement appeared the name "District 65 D.W A." In a prehearing affidavit ex- ecuted on February 22, 1974, Alvin Dicker, vice president of District 65, who handled its labor relations with Concord, stated that the reason for the picketing was that Lowenstein was an economic ally of Concord, and that, from information received, he believed that Lowenstein was performing work at Lyman, South Carolina, which up to the time of the Con- cord strike in September 1973, had been performed by Concord 4 On the first day of the picketing Pollara was asked early in the morning whether he was aware that the Textile Mart premises were being picketed. Pollara verified by personal observation that there were two pickets at the freight elevator entrance and saw the sign they carried. Shortly thereafter, Pollara sent some of his men out to commence shipping. Within several minutes a few of the men returned and in- formed Pollara that they were told by the pickets that they would have to stop shipping or there would be trouble.' Thereupon, Pollara himself went out to the freight entrance and asked the pickets why the facility was being picketed and its shipments impeded. The pickets replied that Concord goods were being shipped from the premises. Pollara denied that Textile Mart was shipping Concord goods or that it had anything to do with Concord, or that Concord goods were ever on its premises. When Pollara stated further his inten- tion to continue shipping, the two pickets told him, "You tact with District 65 was the receipt of the District 65 letter of November 23 4 At the instant hearing Alvin Dicker added testimony, not contained in his preheating affidavit, that he had also been advised that Concord goods were being sent from the Lyman Company to Textile Mart In that connec- tion, Terry Fulmer, general manager of the Lyman Company, testified that that company had never shipped any work done for Concord to Textile Mart and Pollara indicated that Textile Mart never had any Concord materials on its premises No controverting evidence was adduced in this regard and I credit the testimony of Fulmer and Pollara 5 Pollara's testimony as to what the pickets told his employees is obviously hearsay and no corroborating testimony was proffered in that regard Gen- eral Counsel conceded at the close of the hearing that there was a failure of proof that the pickets had orally threatened the employees 618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD better not continue shipping or there will be trouble." Pollara then called his men back inside the shop and closed the doors. A trailer which had been waiting to deliver merchandise to Textile Mart was dispatched elsewhere. Picketing at the Textile Mart facility continued for approx- imately a month thereafter. At that time, in a conference with a Board representative, District 65 was advised that injunc- tive relief might be sought against the Textile Mart picketing. Pursuant to this advice District 65 put a halt to the picketing until such time as its right to engage in such picketing could be established. B. Analysis and Conclusions The issues presented here are uncomplicated. As already set forth, Concord terminated its warehousing operations at North Bergen, New Jersey, on August 17, 1973. On September 7, 1973, District 65, which had been the collec- tive-bargaining representative of the warehouse employees, called a strike against Concord. On or about February 20, 1974, 5 months later, District 65 instituted a picket line at the premises of Textile Mart, a Lowenstein enterprise, in support of its strike against Concord. Lowenstein had no bargaining relationship with District 65 and no independent labor dis- pute with that organization. Lowenstein and Concord were also separate and independent corporate entities. The avowed object of the District 65 picketing was to bring about a cessa- tion of business between Textile Mart and Concord. On its face, therefore, the conduct of District 65 in estab- lishing a picket line at Textile Mart and in threatening Wil- liam Pollara, a managerial representative . of Textile Mart, with trouble if he continued to ship material from Textile Mart constituted inducement and encouragement of Textile Mart employees to cease performing services . It also caused restraint of a managerial representative of Textile Mart, with an admitted object of bringing about a cessation of business relationships between Textile Mart and Concord. Such conduct plainly flouts the language and intent of Section 8(b)(4)(i) and (ii)(B) of the National Labor Relations Act, as amended, if, as General Counsel contends, Textile Mart, a Lowenstein enterprise , is truly a neutral or secondary employer, enmeshed by District 65 in a controversy not its own. District 65 does not quarrel with this analysis. District 65 argues merely that Lowenstein was an "economic ally" of Concord, "stands in the shoes" of Concord, and, hence, like Concord, may be picketed as a primary employer. District 65, in this regard, places its principal reliance on the decision of the Board in Brewery Workers Union No. 8 International Union of United Brewery Workers (Bert P. Williams, Inc.), 148 NLRB 728 (1964). In that connection it is noteworthy that in a very recent case against District 65 , also arising out of the instant labor dispute between District 65 and Concord, the Board rejected parallel contentions of District 65 in a factual context virtually identical to the situation presented here. See District 65, Distributive Workers ofAmerica (S.N.S. Distributing Service), 211 NLRB 469 (1974), cited in fn. 2, supra. Reference to the discussion and holding in the latter case obviates the necessity of extended. analysis here. As the Board there indicated (fn. 3), the Brewery case, cited by District 65 in that case also, was a situation in which the Board con- cluded 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 em- ployment 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 per- formed by the employees of the primary employer. In the instant case, contrasting even more markedly than in the S.N.S. case, there is no foundation for District 65's claim that Lowenstein, through the services of either its Ly- man facility or its Textile Mart facility, or otherwise, was doing "struck work," the foundation for District 65's claim of an ally relationship. Here, as in S.N.S., the record discloses that Concord's subcontracting of its work and closing of its plant were the result of legitimate business considerations unrelated to any current or imminent strike of its employees. Indeed, no strike occurred until September 7, 1973. Concord had already begun the subcontracting of its warehousing op erations in July, and by August 17, 1973, had completed that project and terminated its warehouse operation altogether. In these circumstances, as in S.N.S., "it cannot be said that Concord's actions were devised to avoid the consequences of a strike by its employees, or that [Lowenstein] did work which otherwise would have been performed by Concord's employees." (Ibid.) Moreover, in the instant case also there is uncontradicted evidence that Lowenstein, which had for many years been doing printing, dyeing, and finishing work for Concord, among others, was unaware when it initially took on Concord's folding and refolding work that Concord was involved in a -labor dispute with District 65. The first knowledge of that dispute came with District 65's letter of November 23, 1973. Further indication that Concord's sub- contracting of its folding and refolding work to Lowenstein was not a stratagem to compel District 65 to agree to Con- cord's negotiating terms which District 65 suggests, is pro- vided by Concord, who immediately upon termination of its warehouse operation in August 1973, sold its warehouse equipment and sought to dispose of the lease under which it occupied the warehouse. In sum, therefore, I find no basis in the record to validate the claim of District 65 that Lowenstein and, even more particularly, Textile Mart, a Lowenstein facility, was an eco- nomic ally of Concord or stood in Concord's shoes so as to make Lowenstein also a primary employer subject to lawful picketing by District 65. I find, further, no basis in the record to validate District 65's further claim (also based on the Brewery Workers case) that "the timing of the contracting out to Lowenstein was so coincidental with the breakdown in the bargaining [between Concord and District 65], that the two were inextricably woven together" (District 65 brief, p. 2).6 DISTRICT 65, DISTRIBUTIVE WORKERS 619 Accordingly , on all the evidence of record, I conclude and find that District 65, by instituting and maintaining a picket line at Lowenstein's Textile Mart facility and threatening William Pollara, manager of that facility , with trouble if he continued to ship material from that facility , violated Section 8(b)(4)(i) and (ii)(B) of the National Labor Relations Act, as amended . District 65, Distributive Workers ofAmerica (S.N.S. Distributing Service), supra. I find further that the unfair labor practices herein found affect commerce within the meaning of Section 2(6) and (7) of the Act REMEDY The Act requires that upon the finding of unfair labor practices an order be entered requiring the offender to cease and desist from engaging in such conduct The conduct in which District 65 has been found to have engaged in this case, like the conduct in which it was found to have engaged in the S.N.S. case, supra, both ansing out of the same labor dispute with Concord, demonstrates a proclivity on the part of Dis- tract 65 to take unlawful action against any secondary em- ployer doing business with Concord. Accordingly, the remedy herein will be fashioned to interdict such conduct. (S.N.S. Distributing Service, supra.) Customary notice-post- ing and reporting requirements will also be included in the order Upon the foregoing findings of fact and conclusions of law, upon the entire record, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, I recommend the following Order: ORDER' Respondent, District 65, Distributive Workers of America, its officers, agents, and representatives, shall: 1. Cease and desist from inducing or encouraging any in- dividual employed by Textile Mart, or by any other division or department of M Lowenstein & Sons, Inc, or by any other person engaged in commerce or in an industry affecting com- merce, to engage in a strike or a refusal in the course of his employment to use, manufacture, process, transport, or oth- erwise handle or work on any goods, articles, materials, or commodities, or to perform any services; or threatening, co- ercing, or restraining any persons engaged in commerce or in any 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 Fabncs, Inc. 2. Take the following affirmative action: (a) Post at its offices and meeting halls copies of the at- tached notice marked "Appendix."8 Copies of said notice, on forms provided by the Regional Director for Region 2 of the National Labor Relations Board, shall, after being duly signed by a representative of Respondent, be posted by Re- spondent immediately upon receipt thereof, and be main- tained for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted Reasonable steps shall be taken by Re- spondent to insure that the notices are not altered, defaced, or covered by any other material. (b) Notify the said Regional Director, in writing, within 20 days of the date of this Order, what steps Respondent has taken to comply therewith. IT IS ALSO ORDERED that the complaint herein be dismissed insofar as it alleges any violation of the Act not specifically found herein. 8 In the event that the Board's Order is enforced by a judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT induce or encourage any individual em- ployed by Textile Mart, or by any other division or department of M Lowenstein & Sons, Inc, or by any other person engaged in commerce or in an industry affecting commerce, to engage in a strike or a refusal in the course of his employment to perform any services; or threaten, coerce, or restrain any persons engaged in com- merce 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 Fabncs, Inc. DISTRICT 65, DISTRIBUTIVE WORKERS OF AMERICA 6 District 65 in its brief (p 2, fn 1) withdraws any claim that Concord's action in subcontracting its warehousing operations and District 65's action in response to Concord's conduct was attributable to bad-faith bargaining by Concord In any event, as the authorities cited in the S N S case establish, such conduct by Concord, even if it occurred, would not license District 65 to engage in an unlawful secondary boycott 7 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