Dee Knitting Mills, Inc.

National Labor Relations Board - Board Decisions

Apr 30, 1975

217 N.L.R.B. 650 (N.L.R.B. 1975)

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 and International 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.]