Petition for Writ of Certiorari — New York District Council No. 9, International Brotherhood of Painters & Allied Trades v. National Labor Relations Board
Supreme Court brief1972
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Supreme Court of: the Muited States é
1971 -October Term
igs No. aad Cc 4} ay 4
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__NEW. YORK DISTRICT COUNGIE NO. 9, 002 tst—s—™
_INTERNATIONAL BROTHERHOOD OF
PAINTERS & ALLIED TRADES, ‘AFL- CIO,
| * Petitioner,. ~ 2
Vv.
NATIONAL LABOR RELATIONS BOARD,
Res pondeht.
}
PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE SECOND CIRCUIT ,
>.
; IRWIN M. ECHTMAN
° ; Counsgl for Petitioner |
6:East 39th Street
New York, New York 10016 -
(212) MU 33-5516.
CS
XS ee |
TABLE OF “CONTENTS
» PAGE
Citation of Opinions Bélow w......... sconeee ihiaies awsens seeies oe
_ odurisdiction - ............ ies Pasa TERRACE Ee snes isceoeee 2
' Questions Presented for Review ......ccsiecgee Sens aie 2
Statute Involved u.ccecegsesesesssesesessssestescsesees eb a 3°
Statement of the Case ...... ues ok ucicloaie adh sialon woe” SD
A. The WD sscnssnigsasincoiine sah 3 sessssesancnsaseatestesessnsgsensse . 8
B../Reasons for Granting the Writ ........ eae a
CONCLUSION .:.......44, ea gveneee renner tied ieksuncneenen. 10°
: Rete “- i
: : é.
sh :
“sie
TABLE OF CONTENTS °
Rp
Page
APPENDIX A:
Decision of the United Ewe
States Court of Appeals | ‘ Ses
for the Second Circuit _ 3 A-1
Cert: a
“APPENDIX B: -'
Decision and Order of
the National Labor ee Se
Relations Board , Fea A-4
APPENDIX C:. | ce - ‘a
_ Trial Examiner's Decision ee se A-7
. +e : :
6.
“| aa
: TABLE OF CASES
*
; Bridges Vv. California, 2
Bld U.S. 282 ave
Brown ve “Louisiagia, |
383 U.S. 131 (1966)
~
Ke —_— v. ” Netwopolgsen nee
| ‘Federation of Architects :
(Ebasco), 75 F. Supp...
672 (S. D.NJY: 1948)
Green ‘ International ,
- Typographical Union, ~-
182 F. Supp. 788° (1960)
~~ Local 761, IUE-y. “N.L.R.B.
_ (General Electric), 366 |
> U.S. 667 (1961)
. National Labor Relations
Board v. Fruit and ‘Vege-
table Packers, 377. U.S."
58 (1964)
: National Labor Relations
Board v: .Local 254, .
_ Building Service Em-
ployees International.
‘Union, 376 F.2d 131 °°
(CA 1, 1967).
-
omy
10:
6+7
TABLE OF CASES
.
Sailors' Union of the
Pacific. (Moore Dry
Dock), 92.NLRB 547
United Mine Workers
v. Illinois Bar Associa-
tion, 389 U.S. 217
(1967)
STATUTE
National Labor. Relations
© Act, as amended
(29 U.S.C. 151 et seq. )
Section 8(b)(4)(ii)B
Section 8(b)(4)(i) B
Ss
” a ALS Gs CHEMIN #
Page
6
8 i
e
2,3, & 7
5
4
IN THE
Supreme Court of the United States”
“y
New York Duistricr Counci, No. 9, INTERNATIONAL
_HOuD OF PAINTERS & ALLIED TRAvES, AFL-CIO,
‘Petitioner,
—against— _
NATIONAL: LABOR RELATIONS BOARD,
te: Respondent.
———___ mm oe
PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
"To the above, the Chief Justice and the Associate Justices
of the Supreme Court of the United States:
' Petitioner above named, (formerly known as New York
District Council No, 9, Brotherhood of Painters, Decorators
& Paperhangers of Ameri ica, AFL-CIO), prays that a writ
of certiorari be issued to review the judgment of the United
. States Court of Appeals foxy the Second Circuit, entered on
the 13th day of October, 1971, in the above case, sub noni
National Labor Relations Board vy. New York District Coun-
cil No. 9, Brotherhood of Painters, Decorators & -Paper-
hangers of America, AFL-CIO. yk
Citation of Opinions Below
The Court of Appeals for the Second Circuit issued its
decision from the bench, without. opinion; its judgment
centered thereon is printed herein as Appendix A.
~
©
2
"The decision and order of the National Labor Relations
‘Board found that Petitioner had committed an unfair labor
practice’ in violation of Section -8(b)(4)(ii)B of the
National Labor Relations Act, as asnended [29 U.S.C. see.
-158(8) (4) (ii) B]. Such decision and order is reported in -
185 N.L.R.B. No. 33, and is printed as Appendix B yy.
— aaa
i. “ a a aa , ca
Th Trial Examiner's, decision upon which the National .
Labor Relations Board decision and order were based is
_ unreported and is printed as Appendix C hereto.
Jurisdiction
{ \
The judgment sought to be reviewed is- that of the,
Court of Appeals for the Second Circuit entered on October
13, 1971. No petition for a rehearing was filed.
Jurisdiction of this Court is invoked under 28 U.S.C.
Section 1254(1).
Questions Presented for Review
The basic question presented for review is whether a
labor union’s rights under the First Amendment to the. ~
Constitution have been violated by a- National Labor Rela-
tions Board finding that such union’s appeals to a govern-
mental agency for redress of grievances, made by means of
written and oral- communications, constituted an unfair
labor practice in that they threatened; coerced or restrained
such governmental agency Within the meaning of section
8(b) (4) (ii)B of-the National Labor Relations Act. —
© _
~
al
3
Statute Involved ee
Section 8(b)(4) (ii) B-of the Nationat Labor Relations -
Act, as amended-+(29 U.S.C. Section 158(b) (4) (ii) B), reads,
in pertinent part, as follow
=
“Tt shall: be. an unfair labor practice for a labor or-
- ganization or its agents—— “ae
oS CR ee Se
( 4). * * *
‘(ii) To threaten, coerce, or restrain any person
‘engaged in commerce or in an industry affecting com- -
merce, where an object. thereof is:
a 2 * . # -# sf
(B) forcing or requiring any person * * *
to cease doing business with any other
“person, * * *: Provided, That nothing
contained in this clause (B) shall be
construed to make unlawful, where not
otherwise unlawful, any primary strike.
or primary picketing; .. .”
~~ Statement of the Case
A. The Facts
Petitioner (the “Union”), a labor organization, had en-
tered into’ a collective bargaining agreement with Delta
“Contracting Corp. (‘Delta’), reqiiring, among other things,
the. payment by Delta of certain wage supplements for pen-
sion, . welfare - and <insurance purposes for’ the benefit of
Delta’s employees. A dispute arose between the Union and
Delta about the Union's claim for $26, 000 in unpaid ‘wage
supplements, causing the Union to declare Delta. unfair
(TXD. 847 n. 4)? and to withdraw the Union’s members:
a Numerical references herein preceded by “TXD” are to the
pages of the Trial Examiner’s Decision contained in er C
herein.
4.
from Delta’s work: In order’ to execute a contract which
Delta had entered into with the New York City Board of
Education, an agency of the City of New York. (TXD 244,
" for painting and modernization work in Public Sch6ol 228,
Delta subcontracted its work to Strip Clean Floor Refinish-
ing Corp. (“Strip Clean”), conceded inthe National Labor _
Relations Board proceeding to have been Delta’s ally, [see
Douds Vv. agen geomet Federation of Architects (Ebasco),
15 F. Supp. 672 (S N.Y. 1948) } TXD 26%, n. Seis
The Board. of Education contract required, among other -
things, that Delta comply with the requirements of Section
220.of the New’ York State Labor Law .by paying to its
employees the prevailing rates of wages and. wage .supple-
T™ments (TXD. 247, n:>-5). The contract also provided that
“The Board [of Education} shall have the right to, declare
élta} in default ... if at any time the [Executive Di-
rector of the Oftice’-of School Buildings] is of the opinion
and shall so certify to the -Board [of Education] that
[Delta] is-or has been wilfully or in bad faith violating
any of the prov isions of the contract” (TAD 248, n. 5).
Zé
a the’ Summer of 1969 petitioner-Union sent vari-
ous written communicdtions to’ the .Board of Education
informing it of the dispute and of the fact that the Union
intended ‘to picket Delta and Strip Clean at the P.S. 228
job site. These written communications. charged Delta
_ with violating its collective bargaining agreement with the
Union and its contract with the Board of Educatiof®. The-
communications requested the Board to hold an immediate
hearing pursuant to the terms of its contract with Delta
with a view toward cancellation of the Board’s contract
with Delta (see, e.g., TXD 255, 256, 258). In one-of these’
communjcations, a letter dated July 29, 1969, to Mr. Rich-
ard ‘J. Martin, Director. of the Division of Maintenance:
and Operatioris of the Office of School “Maintenance, the
Union stated: “The charges we have made’ are serious.
°
"
re
Because we dre mindful, of .serving: the best interests of
the schools as public. Spirited citizens, we must insist that -
such gross and repeated violations, involving large sts
of money, should not be ignored. We want to avoid any ©
scandals involving execution of painting contracts, both
from the point of wkew of our Union as well ax the Board
of Education and the City of pias York” (TXD sad e&
*
.
On September f, 1969, the nion began pic keting Delta
in front of Pas. 228. with signs stating that Delta” was *
unfair “for underpayment to insurance and peusion funds,”
and it continued te picket util October 10, 1969 CFEXD
251). Meanwhile, Strip Clean -had filed charges with the
National Labor Rel ations Board on August 15, 1969, that
the Unio had violated Sectioris S(b) (4) (i) and (ii) B of
the National Labor Relations Act.: On October 17,. 1969,
the Board issued a complaint based on the filed charges
and on the stibsequent. picketing, und a hearing was held .
hefore a: Trial Examiner, on December 1 and 2, 1969,
9
e
‘The Trial ‘Seaminw ‘conchided, after the hearing, that
there was.-no evidence that: the Enion+had, induced or en-.
encouraged Board of Education employees to engage in a }
work stoppage and therefore that the charge with’ respect
to Section 8(b)(4)(i)B had not been sustained (TXD
272. 273). There was no evidence that the picketing had.
2 Section 8(b) (4) (GB reads in veritas part as follows:
»“(b) It shali be an unfair labor practice for a labor or-..
‘ » ganization \or its agents—
co eee ed * *# #
4(i) to engage in, or induce or ‘encour: ge any in-
dividual employed by any’ person engaged -in
commerce or in an .industry ‘affecting commerce
to engage in a strike or a refusal... to per-
form any services +. . Where ; .-.. an object
-thereof is: te |
ow % *% > % ¥ ;
'(B) foreing or requiring any person. . a
| cease: doing business with,any other per-
' / o Py
/ e
impeded Strip Clean in its work or clmneit disrupfion or
harm in any way to PS. 22s or the Board of Education
(See TXD 264). Nevertheless, although it was conceded by
the National Labor Relations Board that the picketing was
in substantial literal compliance with the Moore Dry Dock
standards (TXD 270)° and that Strip Clean was the ally
of Delta with whom the-Union had a primary dispute
(TXD 267, n. 19), he ‘coneludéd that the Union's commu-
nications which preceded the picketing had coereed and re-
strained the Board of Education with the object of caus-
ing the Board: of Education to cancel its contract with
Delta and cease doing business with - Delta.
On August 27, 1970 the National Labor Relations Board,
in a split decision, aflirmed the Trial Examiner's ruling,
a dissenting member of the Board indicating in a separate
opinion his disagreement with the majority” s finding of a
violation by on Union. ae ;
On October 13, 1971, the Court- of Appeals for the.
Second Circuit. issued an order enforcing the Board's
decision. . afny
-B. Reasons for Granting the Writ
The important question of constitutional “law presented ;
here has never been decided bat has been recognised” and
adverted to by the Court. of Appeals, First -Cirenit,. in
‘National Labor Relations Board v. Local. 254, Building
. ° son . . . Provided, that ho ie contained
in this clause (B) shall be ‘construed to
make unlawful, where not otherwise un-
lawful, any ee strike or primary
: - picketing. .
2 The Moore. Dry Dock standards were established by decision
of the National Labor Relations Board in Sailors’ Union. of the
Pacific (Moore Dey Dock), 92 NLRB 547, and are discussed in
Local 761, IUE v. N.L.R.B. Genre Electric), 366 U.S. 667. 673.
677-681 (1964). 5
¥ .
Service Employees: Luternotional Union, 376. F. 2d 181
(1967). In that-case, the Union“had picketed the Massa-
chusetts Department of Education in an attetipt to prevent
the award of a contract to an employer with whom the
Union had a dispute. The National LabofRelations Board
usked-the Court to find that the picketing’ was in: violation
of a previous court order issued pursuant to Section &(h)
(4) (ii)B of the Act. The Court refused to so find, saying
at page 135: i Seadre oF eee : : |
“In the first place, the words, ‘threaten, coerce .or,
.réstrain’ have apparently never ‘been defined where
the object is a publie-agenew. The Department of
_ Edueation has no customers. The appeal might be.
found to have heen only-to officials of the Depart-
ment and the general public. .. . The farther that
picketing re¢edes from ‘isolated evile’ and the closer _
if comes to the guarantees of the First Amendment
. the more cautions we must be.”
The First Circuit did not, however, decide this issue, nor
was it required to do se in. that case, so that the question
still remains without a definitive answer. The present
case is a direct presentation of that issue.
li is petitioner's position on this application that its
cyimmunications constituted petitions to -a. government .
Fe athe for a redress of grievances. _ They protested the fail-
ure of the Board of Education to take the steps. provided
in its contract with Delta with respect to Delta’s violations - *
of that contract. Moretoer, they protested Delta’s viola-
tions of the prevailing wage requirements not only as con-
tained in that contract, but as provided for in Section
220 of the New York State Labor Law.
' The Union's protests to the Board of Education were
made in an orderly and peaceful manner. The Trial’ Ex-
aminer foundethat at least one of the written communica-
tions wik sent at the express request of the Board of Edu-
8 «
cation (TXD 254). He further found that the Board of
Education had made it known to unions engaged in work
on its locations that it wished to be kept advised of any.
picketing that might occur at its schools and it made a
practice of requesting the union to notify it by letter in
-such a case (TXD 250). . The Union contended that its —
communications: were made pursuant to this practice.
_ This Court has repeatedly recognized that the constitu-
tional right of petition’ may not be infritiged upon in the
carrying out of laws which are otherwise properly enforce
‘able. It said in United Mine Workers vy. [Minois Bar
Association, 389 U.S. 217 (1967), at page 222:5
‘) -
“We start With the premise that the right 46 as-
semble peaceably and to petition for a redress of
grievances are among the most precious liberties
safeguarded ‘by the. Bill of: Rights. These rights,
moreover, are intimately connected, both -in origin
and purpose, with the other First Amendment rights
of, free speech and free press. AH these, though net
identical, are inseparable ‘omitting citations |. The
First Amendment would, however, be a hollow
_ promise if it left Government free .to destroy ‘or
. erode ,its guarantees by. indirect. restraints so. loeng- -
as no law is passed that prohibits free speech, press,
petition or assembly as such. *-We have therefore
repeatedly held that laws which actnally affect the
exercise of these vital rights cannot he sustained
merely because they were enacted for the purpose
of dealing with some evil Within the State's legisla-
tive competence or even because the Iaws do in. fact
provide a helpful means of dealing with such an
" evil.”
’ Petitioner-Union does net claim or snegest that the
secondary boycott provisions of. the National Labor Rela-
* bd . 2 ¥
tions Act are wholly unconstitutional, but it dees contend
9
that. under the facts of this case the Union’s condret with
respect to the New York City ‘Board of Education was’ a
proper exercise of its constitutional rights. . That. the Union
combined its speech with the action of picketing should
not*be fatal to petitioner's contentions because the picket-
ing itself es ae held to constitute a violation of the-
applicable statute and, furthermore, this: silent, ‘peaceful,
orderly picketing was in furtherance of the Union’s First
Amendment rights. As this Court stated in Brown V. |
Louisiana, 383 U.S. 131 (1966) at 142,
“They: [the First’ Amendment rights] embrace ap-
propriate types of action which certainly include
the right in a peaceable and orderly manner to pro-
test by silent and reproachful- pressure, in a place
where the protestant has every right to be... .”
Even the Clear and present danger doctrine would not
Justify infringement of the Union's First Amendment rights
in this case. That doctrine was ’ defined by this Court in
Bridges v. ates ns 314 U.S. 252 (1941) at 263, as fol-
lows: |
“What fi = emerges from the ‘clear*and present
danger’ cases is a working principle that the sub-
stantive evil must be extremely serious and the de-~
-gree of imminence extremely high before utterance
can be punished: These cases. do not purport to
mark the furthermost constitutional boundaries of
protected expression ngg slo we. here. They do no
more than recognize afminimum- compulsion of the —
Bill of Rights. For theN‘irst Amendment does not —
speak equivocally. It prohibits any law ‘abridging
freedom of speech or of the press” It must be taken
as a command of the broadest scope that the implicit
language read in the context of a liberty-loving so-
ciety will allow.”
Loa »
10
In this case there is no evidence in the record that the
Board of’ Education was harmed in any way by the Unipn’s
conduct. Furthermore, there is no evidence that the com- —
plainant, Strip-Clean, was. harmed either. ae not a-
ease where the written or spoken words ere. incidental
‘ to some prohibited conduct. Cf, Green vy. International Typo-
_ graphical Union, 182 F. Supp. 788 €1960).' However, this
is a case where the-Wnion’s IF ‘irst Amendment rights collide
with the interpretation of the statute in this particular case,
In- this. type of collision, the Courts have recognized the
primacy ef the First Amendment ‘principles. National
Labér Relations Boars v. Fruit becca Vegetable Packers, 307
U.S. 58 (1964).
" Therefore, because this case represents a possible con-
flict of Circuits, and because this case involves a substantial
question of constitutional law, ‘the petitioner requests this
a 4 to grant this petition. ui
CON CLUSION
*
For the stated reasons, this — for a Writ of Certi-
“orari. should be granted. | .
- January ae 1972 . :
Respectfully submitted, tein
IRWIN M. ECHTMAN
a _ Caunsei for Petitioner
HENRY J.. EASTON \ ee
_ STEPHEN SCHLAKMAN 28
Of Counsel _ > S.--
° \
\
APPENDIX A, :
UNITED STATES, COURT OF APPEALS
FOR THE SECOND CIRCUIT. . / |
NATIONAL \L LABOR RELATIONS BOARD, i / eee
Petitioner,
No.
ve
, 91-1147
7
ie ‘BROTHERHOOD OF PAINTERS,
DECORATORS AND PAPERHANGERS
OF AMERICA, AFL- ClO, |
)
)
)
)
)
NEW YORK DISTRICT COUNCIL NO. 9°)
)
)
)
er )
Respondent. )
JURGMENT
Before: MANSFIELD, LUMBARD. and
. OAKES, Circuit Judges.
: -THIS CAUSE came ‘on to be heard upon
= | a Lapel of the National me Rela-
(tions, Board mg enforcement ofa certain F |
order ‘evaee by against eda tsmein. New ee =
York District Council’ No. 9, a cee
| of hedkecke: ‘Decorators"and Paperhangers
" of America, AFL-CIO, its officers, agents,
ae?
a /
‘ APPENDIX A x
and representatives on August 27, 1970.
The Court hosed asyement of respective
counse] on September 28, 1971, and at ..
the conclusion of oral argumenehanded ae
down its decision ies ainabaniel of
the Board's order. | | ,
ON CONSIDERATION WHEREOF,
mA hereby ordered and adjudged by the
United States Court of fin for the
. Second Circuit that the said Order of the
Nacfonal 1 1 Labor Relations Board in said
proceedings be enforced, and that New. York
District Council Now 9 Brotherhood of
Painters, Decorators and - Paperhangers
of/am kenauten, AF L-GiO, its officers, agents,
; ad representatives, abide by and perform
the atrections of ‘the Board in said Order
contained. —
x
APPENDIX A
. é
IT IS FURTHER ORDERED that costs
shall be taxed against the Respondent.
(signed) F. Edward Lumbard
judge, United States Court of
: . Appeals for the Second Circuit.
.
‘
(signed) Walter R. Mansfield:
Judge, United States Court of
a eetan for the Second. Circuit
FILED:
October 13, 1971 ti ag
APPENDIX Bo.
wee DECISION AND ORDER -
A-4
, On March 26, 1979, Trial Examiner Harry H. Kuskin
issugd his Decision in the above-entitled proceeding, f inding that
Respandent had engaged in and was engaging in certain of the .
unfair labor practices alleged in the complaint and recommend-_
ing thafit cease and desist therefrom and take certain affirma-
tive action, as set forth in the attached Trial Examiner’ s ‘
Decision. The Trial Examiner also found that Respondent
had not engaged in certain other alleged unfair labor prac
to the Trial Examiner's Decision ang supporting briefs
The Board has reviewed the rulings of the Tri ] Examiner
made at the hearing and finds that no rejudic ial error was
committed. The rulings are hereby affirmed. The Board has
considered the Trial Examiner’ S$ Decision, the exceptions and -
Supporting briefs, and the entire record ib this. case, and here-
by adopts the findings. conclusions, and recommendations of
x
. thé Trial Examiner.
at
*
C230/ cd igen
ORDER
Pursuant to Section 10(c) of the National Labor Relations‘
‘Act, as amended, the National Labor Relations Board hereby -
_ adepts as its Order the Recommended Order of the Trial
Examiner, and orders that Respondent, New York District
Council No. 9 Brotherhood of Painters, Decorators: and Paper-
hangers of America, AFL-CIO, its officers, agents, and re- .
presentatives, ‘shall take the action set forth in the Trial,
Examiner's Recommended Order. eos
es
Dated, Washington, D. C. August 27, 1970
Edward-B. Miller, Chairman
Frank W. McCulloch, Member
Howard Jenkins, Jr., . ‘ Member
(SEAL) - - NATIONAL LABOR RELATIONS BOARD _
Member Brown, dissenting: :
; In furtherghnce of a*primary labor dispute with Delta,
Respondent: Union threatened :to, and did, picket Delta's
operations at the Board of Education (BOE) project. This
- picketing complied in all respects with the criteria.for pre-
. Sumptively lawful picketing set forth in Moore Dry Dock. -
. #
| tn
Sailors’ Union of the Pacific (Moore Dry Dock), 92 NLRB -.
Dai, aiscussed in Local 762, TUE v./N. L-R.B. (General .
Electric), 366 U.S. 667, 673, 677-681.
employees. ase s eg
"Jeo
a
«i Lie ONC ee RRS SMITA ON connie ai
a
°
: Whatever effects’ there may have been on ‘BOE, -a neutral in the ’
" dispute, were incidental to Respondent Union's lawful picketing aes
op /
ac tivities. ¢/ That Respondent Union communicated with BOE
in an effort to avoid taking picketing action against Delta was _
hardly sufficient, in my judgment, to convert Respondent's
lawful picketing into unlawful secondary conduct. 3/ At no
time during such conversations did Respondent threaten, or
even suggest, that it would agus either ous or the latters
Dated, Washington, D.C. Augtst 27, 1970. => ait c. ae
Gerald A. Brown, ; Member |
" NATIONAL LABOR RE LATIONS BOARD
%
Ins
Local 761.-TUE v. N. L.R.B. (General Electric), 366 U. Ss.
+ BOT, 612-875. |
sat Clerks Union, ae 770 A N.L.R.B. (Food
Empjover s Council, Inc.). 236 5d 365, 375; Plumbers
and Pinetitters Local 471 Bazetel Plumbing), 135 NLR
355, 3ol-g0e, iruck Drivers &- helpers. Local No. 592,
Teamsiers (Estes Express Lines, inc.}, 181 NLRB No.
«Babe v ole,
ane Ia Or,
APPENDIX C mai
\
“UNITE D STATES OF AMERICA .
* BEFOXE THE NATIONAL LALOR RELATIONS BOARD
DIVISION OF TRIAL EXAMINERS
WASHINGTON D. C.
oe.
NEW YORK DISTRICT COUNCIL NO. 9°
- BROTHERHOOD OF PAINTERS. DECORATORS
AND PAPERHANGERS OF AMERICA AFL clo
and
=
otis CLEAN FLOOR REFINISHING &
Augus' 15, 1969, in which. LIS: alse BE
ae.
P siN sien ne:
' David Bact pees for
\e
“the General Counsel.
Sanford E_ Pollacke€sq ,
tor the Charging Party.
Henry J. Easton, Esq ,.
of aston & Echtman, | | a Se = ae neg
for Respondent. —_* oi .— ots im
‘ Pa % “ : : | ae 5 :,
TRIAL EXAMINER S DECISION ‘
Statement of the Fr
HARRY H. KUSKIN. Trias Examiner: This proceeding —
was heard at Brovklvn, New York, wn ‘December 1 and 2, 1969.
A complaint, as amended at the hearing issued herein on
October 17, 1969, based on a. charge filed py Strip Clean Floor 7
Regimishing &° Painting Corp , here€an fiised Strip Clean, on -
that New Yark District .
(Counce) No. 9 Brotherhoud of Painters. “Dec orators, and Paper-—
hangers of America, AFL- C10. herein cailed Respandept, has,
by certain described conduct, viciated: Section "8 ih) (4) () and fii)
e of the Act by threatening the: Beard of Education of the City
Of iow York, herein calted the Board of Education, orally and
<< in written communications, with picketing ¢ and with other
jsaj- Ce
ae J ad =
eee 1 ad . °
economic reprisals i Strip Clean and Delta Contracting Corpora-
thon, herein called Delta, were permitted to continue working
at Public School 228, Rated in Brooklyn,-New York, herein
calidd P.S. 228, and by thereafter, in furtherance pf its labor °
dispute with Delta, engaging in picketing at P.S. 228 and causing
employees of the Board of Education and of otjier persons en-
Kaged \n commerce -to strike and refyse to perform services
for their respective empioyers all with an object of te he
and requiring the Board of Education 10 cease doing business
with Delta and of forcing or requiring other persons normally
doing business with the Board of Education 40 cease doing —
busirfess with the Board of Education. In its answer, as amended
at the hearing,, Respondent denies that it has engaged in any of X
the unfair labor practices alleged herein.
Upon the entire record, 5 including my observation of
the witnesses, inclygng their demeanor while on the witness
stand, and after due consideratgon of the briefs of the General
Counsel and Respondent, I make the following:
-
2 Respondent filed a motion herein to correct the. ‘transcript’
~~. of these proceedings. The General Counsel filed a reply
thereto and:a cross motion to further correcé the trans-
_cript. Thereafter the General Counsel filed an errata
'* relating to the aforesaid replv and cross motion, as well
as additions to his cross motion to further correct the
transcript. Counsel for Respondent, in turn, filed his
own affidavit in which he opposes, in certain instances,
the General Counsel's cross motion to further correct
: . the transcript, basing such opposition Gn the transcript
~ - itself and on his recollection of the tesumeny: Upon -
consideration of all the foregoing, é shall grant the *
motion of. Respondent and the cross. motion of the General
Counsel, as supplemented, with respect to all
corrections whith ‘are not comested herein. As to those :
corrections ‘proposed by Respondent which are contested
- ‘by the General Counsel, I shall ia those — by q
[2a] a | A-9
‘Findings of Fact :
l. The Business of the Board of Education
The complaint, as amended, alleges, and Respondent
‘admits, that tte Board of Educatron is an agency of the City of
New York operating the public system of the City of New York; »
and that, during the. past vear, which pericd is represemative —
of its annual operations generally, it purchased and-caused to . -
be delivered to its New. York Citv places of business directly
from states outside the, State of New. York. various } materials,
the value of which exceeded $50, 000
The complaint, as amended, alleges further and iedaaeel
admits that, at all times material herein, (1) Strip Clean has
been a New_York ‘corporation and has maintatned its principal
office and place of business in the.Bronx, New York, where-it
13 engaged in residential and commercial painting contracting
‘ and related services; and (2) Delta has similarly been aNew .
: York corporation with its principal offrce and place of bus{ness
Le
* (Continued) Respondent on page 13 line 19 and on page™428
jine 5..however; I shal} denv those proposed by Respondent *
on pace 18 line 16, page 19 line 24, page 343 line 1, and |
page 353 lines 21 and 22, and shall, instead, grant the
corrections at*these respective ‘places proposed by the
General Counse! In addition, Lshall deny thase proposed
corrections appearing in the Generali Counsel's cross
motion which are objected to by Respondent, namely,
those on page 144 line 11, page 148 line 16, pagé 158
jane 11, page 158 lune 20, page 294 line 15, page 310
_ ime 4, and page 311 line“4 While I note that there are
‘Aun thé above motiors a considerable number of imprecise
designations of the lines on-the given pages on which .
corrections are-sough}, 1 have noi. specifacally corrected
these imprecise designations because, in all instances,
the line mentioned shoujd either bear the number im-
‘medateiv preceding or immediately following the one
‘mentioned, and the ref¢rences are readily reeognizable.
in the Bronx, New York, where it is engaved in commercial
painting contracting and related services; and, further, Delta.
has con racted with the Board of Education to perform certain
service at P. S. 228, and has, in turn, subcontracted some of
this wérk to Strip Clean. |
E I find’ upon the basis of the foregoing. and as ‘Respondent
: also admits, that the Board of Education is a persen engaged in
an industry affecting commerce piso tind that the purchases
of the Board of Education whieh are atte cted by ‘the dispute have
a substantial impact upon: the shiiment of couis and Supplies
in interstate commerce and upon industries affecting ¢ sans
within the meaning of Sec tion Bib) (4) and Section 2(6) anc (1) 7
and that it will effec tuate the perpoyes, of the Act to assert
jurisdiction herein.
- a, The Lafor Organization Involved
I find also, and Responde nt: does net ce ny, that, as
“alleged, New York Distric t Council No. 9 Ricndiiciteneil of ©
. a ‘libor organization within a meaning of Sec tyon 2(5) ~ P
of the Act. a
Il. The Unfair Labor Practices
os Some bac ke und facts
In 1964, at the time Delta began to do buSiness, it
entered into a contractual relationship with Respundent.
LS (Continued) In addition to al! the foregoing corrections,
the transcript is inaccurate in various respects relatung
primarily to comments by the undersigned, and it is
hereby further corre€ted in the manner: indicated in ,
° Appendix "B, " attached hereto. WZ
°. - -
. Thereafter, in 1965, Delta agreed with Respondent to be. hound,
‘for the period of August 1, 1965 to July 31, 1968, by a contract °
‘ between Respondent a the ASsociation of Master Painters and
“igated themselves fo “live up to and conform with all the pro-
’ visions, terms and conditions of the prior ageeement, except
‘Decorators of the City of New Yor k; Inc.
On July. 15, 1968,
while the iatter contract was sui in effect, ‘Delta entered into -—-
a contract with the Board of Education to do post mode rniza-
ison painting and finishing and incidental repairs at P S 228 -
for the amount of $58, 200 On September 9, 1968. after the
expiration of the abdve bargaining agreement, Delta and Re-
wa ah entered into a ‘Memorandum of lndepediocas Contrac tor
Agreement, Effective September 9, 1968, - in which they ob-
<—
as modified and amended by the new agreement’ ‘hetween.-
Respondent and the Assoc 1auion, in addition, Délta agreed “to
execute a more lorméLunstrument as soon as [ats notified by
the Union that the same ‘has .peen prepared. and that jhis formal ©
agreement ‘inci super ede the memorandum agreement in atl
respects . = Subsequent thereto, either in September or October, , ‘
Respondent Submitted to Delta such a‘tormal bar gamingyagreement
covering the period unuil Julv.31, 1971, put Defta dec lined to Sign °. ~
the agreement because of an unst ttlec-and dispute ‘d claim by Re-- |
spondent against Delta in the amount of aboyt $26, 000 for pen-
sion and fringe benefits assertedly due under Delta’ s pre- exsiing
contracts with Respondent - “
‘During August or September 1968, Delta subc ontracted to
Strip Clean some of the painung work to he done for ihe Board .
o ¢
Le > --
*. .
é ‘Delta was not a. member of the Association
3
It was stipulated that this memorandum of agreement is V
pKa on Delta. St ,
¢,
oe ee Loa —) Se
of Education at P. S. 228. At about the same time, Strip Clean |
exec uted a codlective -hargaining agreement with Respondent. |
" However, this latter contract was cancelled by Respondent on |
September 19, 1968, on the ground that "Strip Clean is the met
atter ego of. Delta-and under the'rules of [Respondent] this is
notepermissible. ' 2 Whereupon, Delta cancelled its: subcontract
‘with Strip Clean. A Pee Sate eae atic
ee .
Work was. begun. by Delia itself at P:S. 228 during the.
latter part of: 1968. Delta started with carpentry work and other
repairs; it did no painting work because the over- -crowded
condition of _ school precluded such, activity. Painting work:
did begin thgreafter in February or’ March 1969, ‘put a con-
centrated effort in this direction occurred in the latter part of
_ June 1969. Seas at eke reas ae oe
_
; ; The above- mentidued iene between jtespondent and Delta
which had affected the consummation of anew agreement in ,
1968, came to the attention “of the Board of Education. In early —
‘January 1969, Respondent sent a letter to the. Board of Education
_ complaining that "Delta was not paying the prevailing rate and
_ fringe benefits. “2 ‘Thereupon Richard J. Martin, the Director
of Maintenance and Operation of the Board of Education, convened
- - Although John. Durandes, * the general manager of Delta, ">?
‘testified to the contrary, it would” appear, and.I find, that”
“ Respondent rad, by this me, determined. that Delta
‘was an unfair employer. .
fon
Article 63 of the above - mentioned contract between the:
Board of Ecucation and Delta provided, in relevant part,
that the wages to be paid-for a legal day's work to
laborers, workmen or mechanics empjoved upon work
contemplated hy this contract "shall not be less than the
‘prevailing rate of wage’ ‘and supplements as, required’
and-défined in Section 220 of.Labor Law... .- . " Attached
to the invitation from the Board of Education to con-
tractors to bid on the work to a aes at P. S: 228 was a
ee
a meeting at his office in early January 1969, to Which all |
| interested par ties ih Lng dispute were invited. “Present. in be-
half of the Board of Education were’ Martin; Charles Frances-
— can, chief of the field section, byreaui of maintenance; Irving
“Golden, Esq. a lawyer attached to the Board of Education staff:
and a Mr. Houston Attending at ‘the instance of Respondent |
were Prank Schonfeld, its sécrefary -treasurer: Carl Blum,
administrative aide to Schonfeld; and Samuel Hirsch; executive
secretary of the Joint Industry, boards S 4 And attending for ca pS.
=. . (Continued) section on wage rates which the office of the
Comptroller of the City of New York esfablisheq, pur-
sSuant to Section 220 of the Labor Law of the State of
‘New York, forfaborers, workmen and méchanics em-
ployed by private contractors under contracts involving —
,. public work between any agency: of the City of New York
ee and:such private contractors. «With specific re erence
Jy ; to painters, the Comptroller set forth the rate per hour
. . .{Or-painter’s, painters.on steel. -pajnters. on swing ,
' scaffolds, and painters apprentices, and_also set forth.
figures as to the Supplement benefits, including fringe
- benefits and payment into the iNsurance fund.
“Also relevant, in connection with the issues herein,
: are Article 5 and Article 21 of this contract between the
= oe Board of Education and Delta’ Thus,-in Article 5, the
. “2° eontfactor undertook that he "shall not have work per- |
ee 7 formed nor shall he employ labor or means that would in
: any wav.cause or result in'a suspension, or delay of, or
Strike upon the- -work to be performed hereunder of’ any
‘of the trades working’in and about [P,S. 228] or’in or
about any other buildings of the Board [of Education] or —
working upon any of the premises of the Citv.of New. York. ee
And Article 21 provided, in relevant ‘part, that "the Board
|of Education| shal1 have the right to declare The Contrac-
to> in default on the whole or any part of tke work .
af at anv time the {Executive Director of the office of School
oy eae Buildings | is of the opinion and shall so certify to the
7 " . Board. |of Education} that Thé Contractor is ‘or hasbeen
wilfully or uf bad faith. violating ‘any of the provisions of
this contract. . cae
ier 3 :
The Joint Industry Board is commana of seven members
_ from Respondent and seven members from contractors
Koz)
~
. °; oe .
° se . a q e > e “
. = : : ° 4 :
. « 3 . ;
F -
. ~ 7 ae , nenieteel ——s Se
. ° : me
; .
.
e *
°
|
_ Delta were Johr Durandes, its general manager; and a Mr.
oe a) oar < - ee eee ee Soe ot ae
i) ie
e
Feinstein, its lawyer. During the meeting, Respondent’ s re-
presentatives claimed that Delta owed Respondent about
_ $26, 000 consisting of unpaid employ ee fringe benefits and a z
find levied against Delta. Durandes, in turn, disputed the
amount claiméd but indicated that if Delta could be shown that
it owed the money, 1t would pay The upshot of the meeung ;
was an amicable arrangement that representatives of Respondent,
and of the Joint Industry Board, and Durandes would meet n
an effort to resolve the matter.
After the meeting that day, there was some further dis-
cussion among some of those who attended the meeting. The
testimony is in conflict as to whether requests were then made
of Respondent by Board of Education ‘representatives to be
notified in advance of any picketing should that eventuate he-
cause of a failure to resolve the dispute. Blum and Hirsch
testified that there was such discussion with Martin and.
Francescani. However, Martin denied that he spoke to anyone
from Respondent after the meeting that day and added that there
was no Such discussion during the meeting; and Francescani -
could not recall anyone in the group mentioning picketing that
day, nor did he recall asking anyone to let the Board of Ecuca-
tion know if Respondent was going to picket Delta at any of the
*
2. (Continued) serving the painting industry. ‘Schonfeld and
Blum are part of the office force which handles admihi-—
Strative details for the Joint Industry Board. Included
among their functions are to coilect pensions and welfare
and annuity contributions for the Painting Industry in-
- surance funds and to take action with respect to reported
' violations of a collective-bargaining contract either by
. Respondent or by a member of the Painting Industry.
4
eo
_at that meeting or immediately thereafter requested either
-
Ig RE
[250] | wis
schools. ! note, "too, that Blum acknowledged that he testiiied
before Judge Travia in the injunction proceeding in the Federal |
- District'Court arising out of the subsequent picketing, (1) that
he probably brought up the subject of picketing; and (2) that he.
told: Francescani that Respondent was. contemplating picketing
if the difficulties between Pespondent: and Delta were not re-
.solved; and (3) that "{he] also suggested at that time we write
to the Board. ” Tnote, alsu, in the case of Hirsch, that,
although he could not recall while testifying herein whether
— =
Durandes was involved in the post-meeting discussion concern-
ing the contingency of a picket line, he acknowledged testifying
before Judge Travia that Durandes was present ‘and that |
Francescani talked to Durandes about wanting him to straighten
out the matter ‘because if there was any picketing, his contract |
with the Board of Education might be in jeopardy. In all these
circumstances, including their acknowledged testimony before
Judge Travia, and as Blum's and Hirsch's testamony herein
_ seemed to be influenced by their strong partisan feelings in the
matter, I find that the record does not preponderate in favor
of a finding that any representative of the Board of Education —
Blum or Hirsch, or both of them, to have,Respondent notify ‘
the Board of Education in advance of any picketing. However,
I find further, in this connection, on the basis of the entre
record that (1) representatives of the Board of Education have
made it known to unions performing work at anv of its locations
_that the Board of Education was interested in knowing, when-
ever a labor dispute developed in. the course of such work,
if there would be any picketing; and (2) it is the practice of ,
the representatives of the Board of Education, upon being
x \
f
o~
ste. wrt es Cape, ie AR
Tes] ee
notified that picketing was going to occur ata school, to ask
‘for a letter to that effect from the union involved.
The dispute between Respondent. and Delta was not re--
solved thereafter; it eventuated in picketing by Respondent
at P.S. 228, which began on September 4, and continued through
: October 10, 1969. On the latter date, during the pendency of ne
the above mentioned ‘injunction proceeding betore a Federal ae
District Court of the Eastern District of New York, which pro-
ceeding was instituted by the General Counsel pursuant 10 10(1)
- of the Act, y Respondent agreed to cease the picketing while
- awaiting a determination.by Judge-Fravia o on the 10(1) petition.
An injunction against such picketing issued on October 31. The
last day of vichicstealh was October 10, 1969. =, |
» The Critical event$S and the alleged
a pan hn activity aus ate
The critical events span the period beginning in June 1969
and ending on October 10, 1969. z During that period Respondent.
made some visits to the jobsite and sent three letters. and a
telegram to the Board of Education bearing dates of July 1, July _
14, July 29 and August wae I shall treat with these matters in
detail hereinafter. )
ae,
“X‘ \
~
As heretofore found, the complaint-herein issued on
August 15, 1969. :
_ All dates hereinafter are in 1969.
Oe
TF
| = | Tal eee
On or about June 30, around 1:00 or 1:30 p. ‘m. , Barney. .
Beard, the business representative of Respondent went to the
_ jobsite at P. S. 228 and’ there observed two painters on‘an out-"
side scaffold. ‘He spoke to them, and upon learning that they
were employees of Delta, told them that he had orders from
Respondent Saying. that. Delta was unfair, that Delta ‘owed money
to “the welfare and pension fund, and further that he was to tell
o‘\ ;
‘them to stop workang. 9/ At this, the men stopped working and
en —t=wjw bg
ee
_ Although Durandes testified that Beard made wk visits
to the jobsite, one on June 27 and one on June 30, during.
- which Beard spoke to painters on the job, Beard insisted _
that this happened only once during this period and it
could have been "the first (of July], the thirtieth or the
thirty first [of June]."' I note, too, that Durandes’ pre-
hearing affidavit to a Board agent is at odds with his
testimony, in that his affidavit speaks of a visit to the -
P.S. 228 jobsite on or about the frst of July of "10 or 12
business) agents’ or District Council Members -. I don't
- know-which, " and a visit to the same jonsite by "Beard,
a business agent of District Council 9" about 2 days there-
after./ 1 am persuaded that had Beard been there on the
two occasions, the affidavit would have identified Beard
as being among the 10 or 12 business. agents, too. In
‘all these circumstances. J find that Beard was there ‘only
fon one of these two occasions referred to in Durandes'
affidavit and that this occurred on ar about June 30: And—~ ,
asSuming that there was a prior visit by unidentified re-
presentatives of. Respondent to the johsite on another
/ occasion in June, 1 make no {indings thereon, as absent ~
‘* any identification of such representatives in the record _
Respondent is precluded from adequately contesting the _.
testimony adduced by the General Counsel in that |
regard. - . ae. . | ‘
va
.
. .
‘
6%
> * Be
; 107
SU PRN ORE RASS STE MRM Hh Ete OAR AMER
arr
Less) oe | wor
ssi went inside the building to change their clothes: ‘Durandes
ived on the jobsite about this time and spoke to Beard.
After learning What Beard had done, Durandes told Beard
that he had "no right to stop the men"; and, to Beard's answer
- tthat he had orders from Respondent to do so, ‘Durandes replied -
that "the: is | going. to bring in: :10'men from a different local. "
Sometime dur ing this episode, Beard entered the building.
During his stay, he went to the custodian' Ss office Eg from
. there, spoke on the telephone with Francescani. 10/ Beard
told Francescani, according ‘to the latter's credible testimony,
that Delta "had not: cleared its problems “with. the union
and that if Delta continued - ete oe
Although Beard denied that he went into the building that
day or that he telephoned or spoke to anyone from. the
* Board of Education while at the jobsite, I am satisfied
that he did both, in view of Francescani’'s credible testi-
-mony that, at the end of June, he received a telephone —
call from P.S. 228 and in the course thereof spoke to a
_ person who identified himself as.a business agent for !
Respondent. In this connection, I infer and find, from) the
coincidence that Beard was admittedly on the jobsite at
-the end of June and from! Franceseani's further -credible
‘testimony as to the train of events which followed his
conversation with the usiness agent, that Beard was,
in fact; the business agent-involved in the telephone
conversation, I ;
- x
:
i!
“ o .
a 2 ES A IP OCR ey peas & ba Seems
= : [esa] | A-19. °
to work there, [Respondent] would have to picket the school. " 11/
At this; Francescani asked Beard to have an officer of Respond-
ent call him and Beard agreed to do so. That afternoon, Fran-
cescani received a telephone cali from Blum, the administrative ©
aide to Schonfeld, who is Respondent's secretary -treasurer,
in which Blum voiced, .in effect, what Beard had said, i.e.,
that "he had tried to solve the problem with Delta and Delta
had not cooperated, and that, if Delta continued to work,
| Respondent] would picket." Whereupon, Francescani asked
, /
Blum to put it in writing. Blum agreed to do so 12 and, in
consequence, by letter dated July 1, Schonfeld wrote to Hugh
-McLaren of the Office of School Buildings of the Board of
Education concerning the matter. When th@letter 13/ reached
Francescani, he discussed the problem with Martin and Golden,
and a decision was reached concerning it- Pursuant thereto,°
3/ Although Durandes testified that he was present during the
conversation and apoke to Francescani, too, I note that:
Francescani did not mention this. In all the circumstances,
including the developments of the next few days, as found
- herein, I find that, contrary to Durandes, he did not then
Speak to Francescani, nor did he have a follow-up con-
versauion with Francescani that afternoon, as he further
testified, in which he agreed to stop work-at P.S. (228.
—< Blum testified that, after hearing from Beard, he telephoned
Francescani and told him of peard's visit to P.S. 228 and
of Beard's finding two men there who were working for
Delta, that Respondent had.been unable to resolve its
dispute with Delta,: and that in keeping with his promise
last January to give advance notice of anv action to be
taken, he was letting Francescani know that "we contem-
plated picketing Delta. "' Also according to Blum, Fran-
cescani asked him to write to the Board of Education about
Respondent's intention to picket and he, in turn, spoke to
Schonfield’and Hirsch, the executive secrétary of the Joint
industry Board about this.
— The letter is in evidence as General Counsel's Exhibit 3)
and reads as follows: .
-_
> J 20 OPEN RI AO SREP II Pela Fs IE EEN TS ee
| 5 |
Delta was called by him and told to stop working and to try
ae “A-20-
ia :
to resolve the problem; in addition, the custodian of P.S. 228
was called by him and told not to allow Delta into the school. 14/
Also according to Francescani, he then noted on the above letters ~-
I
23/ (Continued) We are resuming Our request that the
above be declared a non-responsive employer.
Ata previoas hearing, District Council #9 agreed i
to withhold its request since the staff and personnel
at your office, and Mr. Delta, indicated that they
thoucht the difficulties that existed could be rectified.
However, this has not been so. In fact, there are
liens pending against this corporation by the Paint-
ing Industry Insurance Fund and others, stemming ©
from violations of the Trade Agreement.
Furthermore, we are notifying you of our intent to
take necessary economic action ai any location at
which we find this employer working. Specifically,
we intend to picket the job site at P.S. #228in ~
Brooklyn where we are informed that this company
might resume work tor your organization.
— It is apparent that Francescan: had not yet heard. of Strip
oe Clean when this action was taken by the Board of Educa-
tion. Thus, Francescani testified that hé first heard of
Strip’Clean from the Board's Regional Office when he
was Called about a charge filed by Strip Clean in Case No.
2-CD-399; and the record shows that the charge in question
was filed*on July 14, 1969. However, in view of the
testimony of Beard that Durandes told him during the con-
versauion at the jobsite that he was going to bring in 10 -
men from a different local, and in view of Durandes'
testimony, that, at about this ume, he subcontracted to
Strip Clean the work remaining to be done by Delta at
P.S. 228; and that Strip Ciean‘s employees who were re-
presented under a collective agreement between Strip
Clean and Local 7, we.@ already on the job, I infer,- and
find, that Strip Ciean and its employees had been installed
on the job before the orders to stop work were issued.
” [ase] ea
of July 1, "for the file, " the following: "Contrac tor not work-
- ing until a settlement is reached. Custodian notified. [signed]
C.F. 7/3/69." __
; On July 14, Respondent followed up its letter of July 1,
above, by a telegram from Schonfeld to McLaren, which read
as follows: — o- "a
“Re - Delta Contracting Gaiperaten he Per Letter ety 1,
1969 Delta Contraction Corp in Violation Of Union Con-
tract Under Payment To Pension And Insurance Funds
Amounting To $22, 516. 98 Job Will Be Picketed Request. _
Immediate Resumption Of Board of Responsibility Hearing
And Canceliation Of Board Of Education Contract Under
Article 5.
On July 17, a meeting was convened at the instance of
officials of the Board of Education to discuss complaints from
Respondent about Delta. Present for the Board of Education
were Martin and several others. Present for Delta were .
Durandes and its attorney, Feinstein. Durandes also brought
to the meeting a Mr. Kerr, who claimed to be a delegate from —
Local 7. Respondent was not invited to the meeting and was not
represented. Durandes there made known that he was no longer
. doing the work under his contract with the Board of Education
but had subcontracted to Strip Clean. This, in turn, caused
Martin to raise the question of whether the fact that Strip Clean
was déaling with a union other than Respondent createda .
jurisdicational dispute. At this. juncture of the meeting, or
_ on the following day, according to Martin, he received a tele-
phone call from Blum, in which Blum said that "he had given
up on being able to resolve matters with Delta and that they
were going to be forced to picket." Martin then explained to
“ee scape ten nenmuasenans suns Parts ne ae Ste —
Blum what he had learned at the meeting about Strip Clean.
Blum's response was that he. knew about this, that Strip Clean
was an "alter eco" of Delta sftce Strip Clean was owned by the -
brother-in-law of Durandes and that the fact that Strip Clean
was the Subcontractee did not alter the situauon Martin then |
indicated that the labor dispute was now "'a jurisdictional dispute
- and that they should take it up through.preper legal channels in- 2
, “stead of trying to get {the Board of Education| to resolve this, is
"and that "[he] didn't think [the Board of Education| could’ resolve
it."" The conversation ended with Blum Saying that "they were
going ahead with the picketing. "' There is. testimony in the re- .
cord by Blum that he spoke to Maftin on the telephone about the
fact that Respondent contemplated picketing at P.S. 228.
However, he placed the time of the conversation “around early
September, " after he had sent Beard to P.S. 228 to check on
the job in early September and Beard had reported back to him
_ what he had found. In his version of the conversation with
- Martin, he told Martin what Beard had reported, and Martin
| Said that Strip Clean ‘was working there and the employees on
the job were affiliated with Local 7. Hts reply to Martin was
that Strip Clean was not signed with Respondent, that he did not
- know who Local 7 was and that "we were getting ready to picket
Delta Contracting. " I note, in this connection, that Blum in-
sisted, during cross examination, that he had no knowledge of
Strip Clean doing any painting for Delta at P.S. 228 or anv
other school until Beard reported to him in early September con-
cerning the P.S. 228 job. Yet, he acknowledged that “he [had] _
had dealings with Strip Clean" before the above telephone con-
versation; that he had discussed with Schonfeld "the body" of
the correspondence consisting of three letters and a telegram,
,
Sent by Respondent to the Board of Education during July and: | :
The entire text of the letter was as follows:
hades. ; [25a] | A-23
2. o fe
August; and that Respondent's July 29 letter to the board of
Education says, im part; "With regard to-subcontractors
allegedly taking over the work from Delta, may Teall your
attention to the fact that under. the terms. of the Trade Agreement
signed by Delta Contrac tung Corp , Delta assumes responsibility:
that the work will be done by the sub-contractor, in accordance
with the Trade Agreement Further: we have previousiy estab--
lished Strip cian Painting is an alter ego for Delta Contracting
‘Corporation. ' * In. light of the above, 1 lind that the inherent
probabilities of the situation are that Blum was cogmzant. of the
subcontracting by Delta to Strip Clein at the ume when, accord-
' ing to Martin, Blum telephoned him In all -‘these-c ircumstances,
including the fact that. Martin impressed me as a forthright wil-
ness and as more rehable than Blum, credit Martin and find
that Blum did telephone Martin'on July 17 or July 18 and that
the content of the conversation was as testified to by Miyrtin.
As already noted, a subsequent development during July
was the letter of July 29 from Respondent to the Board of
Education.. The burden of ‘the letter was that the Board of
Education call a meeting of the board of Review for the purpose
of cancelling the contracts of the Board of Education-with Delta
2 ‘
In further clarification of our telegram of July 14, 1969,
-Fequestiné” immediate resumption of Board of Re-
-sponsibility hearing and canceliation of Board uf Education
“contract, under Article V", pleased be advised that the:
money due to. the Pension and Insurance Funds, $22, 516. 98,
is Separate and apart from the list of names and amounts
previously given to Mr Dur‘andes, of Delta Contracting
Corp , in connection with the hearing in your office ‘held
on Thursday, January 2, 1969, at 10:00.A.M
ages / 6
8S sy ASE es CMC OY fatal
a
} ‘ Tass] eee A-24
lee bodes in the above figure of $22, 516. 98 is an item of
$380.00, a check dated. November 15, 1968; (prior to the
meeting in your office on January 2, 1969), which was a
payment to the Painting Industry Annuity: Fund. This check
had been returned by the bank for insufficient funds and is
Still outstanding.
‘Subsequent to that meeting, we have made every effort to
bring Delta Contracting Corp. into good Standing with. the
union to avoid any drastic action. Unfor tunately, we have
not. been successful and we must insist that there is more
than adequate ground for the Board of Review to resume its
hearing with a view to cancellation of the contracts of
Delta Contracting Corp.
. With regard to sub- contractors allegedly taking. over the.
work from Delta Contracting Corp. » may I call your
~ attention to the fact that under the terms of the Trade
Agreement ‘signed by Delta Contracting Corp. , Delta’ |
assumes responsibility that the work will he done by the
sub- contractor in accordance with the Frade Agreement.
Further, we have previously established: that Strip Clean
; Painting is‘an = ego" for Delta Contracting Corp.
, The charges we have made are serious. Because we are
mindful of serving the best interests of the schools as
public spirited citizens,’ we must insist. that Such gross
and repeated violations, involving large sums of money,
' should not be ignored. We want to avoid any Scandals in-
volving execution of painting contracts, both from the . |
point of view of our Union, as well as the Board of Educa-
‘tion and the City of New York.
[200] a2
We trust that you will set a date for a mecting of the
. : / ”
Board of Review, to go into this matter, at vour carhest
- convenience.
On August 13, 1969, the Board of Education condacted a *
‘meeting of its Board of Refiew to consider the matter of declar- >
ing Delta in default on Delta's contracts with 1 coverime various *
schools in various New York buroughs, including the one
covering P.S 228. Prior thereto, it had received a recom-
mendation from Martin, its Director, Division of Maintenance
and Operation, that Delta be declared in default on these con- :
tracts in accordance with the provisions of Arucle 21 Also
operative factors in the calling of this mecting were the ahove-
descrihed written communications to it from Respondent @-°- -
July 1, July 14 and July 29 and the tetephone cals from Ré-
spondent to Francescani on or about June 30 a the telephone
call from Respondent to Martin on July 17 or 18° So far as .
appears, among these present at the Board ot Rew cow me cling
were’ McLaren and Francesc amt for the Board of Education,
Hirsch for the Joint Industry Board, and Dufandes and Feinstein
for Delta After considerable discussion, the meeting ended
without the Board making anv finding of default bv Delta
One of the two developments im the wake of the August 13
meeting was 2 letter dated August 15, trom Marten to Delta, .
erecting Delta to resume work wherever Delta had theretofore
- suspended work and authorizing Delta to use Strip Clean as a sub-
contractor “pending wr audit of [Strap Clean’s| books and records
to determine if it is paying the prevailing rate of wages and
benefits as represented in a letter of recent date from Strip
Clean Floor Refinishing and Painting Corporation, addressed
to the Board of Education." The letter then continued with the
following admonition:
.
ba | : A-26 | |
This Division has been advised by the Brotherhood of
Painters, Decorators and Paperhangers of America,
District Council No. 9 of New York City that if either
you or Strip Clean Floor Refinishing and Painting Corpora- a |
tion perform any work in our schools, that picket lines
will be placed around the premises and thereby cause a
Suspension or delay of or Strike, of any trades working in
or about the premises in question.
Your attention is directed to Article 5 of ui contract
which reads as follows:
"The Contractor Shall not have work performed, nor
shall he employ labor or means, in the carrying
out of this contract that would in any way cause or =
result in a suspension, or delay of, or strike upon
the work to be performed hereunder of any of the
trades working in or about the premises herein
described, or in or about any other buiiding of The
Board or working upon any of the premises of The
_ City of New York. "
‘In the event such suspensions, delays or strikes develop
at the premises, this Division will recommend that the
Board of Education avail itseif of the appropriate remedies
which are consistent with the terms of your contracts.
The other development in the wake of the August 13 Board
‘of Review meeting was a letter dated August 14 from Schonfeld
to McLaren, The pertinent por tions of the letter are as follows:
" Please be advised that until such time as Delta Contracting
Corp. arranges to pay its obligations for its employees’
pension, welfare, insurance and annuity benefits, District
—— — rar — t
i
*
Council 9 will picket any jobs which it should work on or
which any of its sub-contractors should be engaged in on
Delta's behalf. This includes Strip-Clean Floor Re-
finishing and Painting Co., and any other such sub-
contractor. Iam notifying you of this because the Board °
of Education has ‘a number of outstanding, uncompleted
contracts with Delta
- As Jong ws Delta Contrereen is under obligation to pay
past- -due fringe benefits, we would regard its employ -. 2 &
meat of a sub-contractor as a subterfuge to evade Delta's
obligations under its contract with District Council 9. |
‘Therefore, whether Delta Contracting Corp. does the .
_ work, or whether the work 1s done by a sub-contractor,
the terms of the Trade Agreement, as above, Still apply.
Furthermore, with regard to bilte-tten| Refinishing and
Painting Corp. . they signed a contract with us on Septem-
ber 11, 1968. However, we revoked this contract, eifec-
tive September 19, 1968, when we determined that the
émployment by Delta of this company was a device by -
Delta to continue working while in violation of its contract
‘with District Council 9. The device was the more obvious,
incidentally, by reason of the fact that Ada Gloro (Mrs.
John Durandes), the president of Delta, 1s the sister of
Mr. Felix Jose Gloro, the principal of Strip-Clean: In
this connection we cite the ene Article VI, Section
1(n) from our contract:
“The Union shall not enter into a contract with .
an employer who is indebted under the terms of
this Agreement or anv prior Agreement by reason
of his non-payment of wages, wage benefits, annui-
ties, penalties or liquidated damages as assessed ,
.
; A-28
by the Joint Industry Board, whether such employer
- proposes the making of such contract under his own
in which he is a principal or has a substantial in-
terest."
For the above reasons, apart from the question of any ~
Union affiliation ‘or lack of affiliation, it is clear that, on
_ the basis of our contract with Delta, District Council 9
-has more than ample legal ground to picket Delta or any
‘sub-contractor engaged in doing Delta's work. Accordingly,
if Delta should resume work, we will ask the public. and _
our men to give us every possible legal support to assist
us in maintaining the wages and benefits of our members. |
‘ On finnish 18, Strip Clean was at work at P.S. 228, per-
forming painting work under its subcontract. with Delta. It
~ continued such work during the rest of August and most of
September. On September 2, Beard paid a visit to the P.S.
228 jobsite where he made an on-the- -spot observation that
Strip Clean was doing: the painting work and was employing
painters, who were adherents of Local 7. Beard relayed this
‘information to Blum via telephone 23/ from the school building
and, in consequence, he was given instructions to commence
the picketing. On September 4, as stipulated by the _parties,
picketing began at P.S. 228; the picket signs carried, the
following legend:
Ly I have heretofore found, contrary to Beard's testimony, |
¢ that he did not speak to Francescani from a telephone
inside the school building on this occasion, but did so on
the occasion of his prior visit to this jobsite on or about
June 30. ee 7 a :
- name or-under the name of any firm or corporation |
an
Ce a :. : * A-29:
DE L rA ‘CONTRACTING UNFAIR
ate, met
pC 9, AFL-C1O
227 WEST 17TH ST REET, NEW YORK cIry
“FOR
_ UNDERPAYMENT ~* tg
Foy a oimy pate ,
PENSION FUNDS
The picketing contunued until October 10. Notwithstanding
the picketing, Strip Clean continued to work at PS 228 until
September 26. At that time, Strip Clean, on its’own, ceased
work temporarily; leaving a large séaffold and other equipment
on the premises. Thereafter, “shortly hefore December a. Strip:
Clean returned to P. ‘S. 228 in order to complete the work under
- ts ‘subcontract. 1 :
As heretofore found, Respondent agreed to cease the picket-
_ ing on October 10, while awaiting a determination hy Judge Travia
in the pending 19(1) injunction proceeding instituted hy the
General Counsel, and an injunction issued thereafter on Oc tober
31.
e 3 |
C. Analysis and. Conclusions
@
Its ‘apparent from all the foregoing that the labor. dispute
herein was hetween Respondent and Delta’and arose over Delta’ Ss
noa-payment into Respondent’ s pension and fringe henefit funds
of certain ¢ laimed deficiencies, and that, although the Board of
_ FRancation had no — dispute with Respondent, it wont
enmeshed in the dispute between Respondent and Delta. —
7 ate 2 ; :
= Although. the Board of Education is not ‘an employer within
the Act's meaning,’ it iS, a person engaced in commerce
within the definition of See tion 8(b)(4) of the Act and is ~
entitled to-the full protection of the Act: See Plumbers,
[265] | PRE ee OE
7 : | ao” ©]
In’ the latter connection, I have heretofore found that there were &
three oral communications from Respondent to the Board of antes
Education to the following effect: (1) on or about June 30,’ Beard, c.
vparpiamraeel s business agent, telephoned Francescani, the |
chief of the field:section in the Bureau of Maintenance of the
Board of Education-and said, in relevant part, that "(Delta]
had not cleared its problems with the union and that if Delta
continued to work anpc facepenten would have to picket the
school"; (2) later that same day, Blum, the adminis trative aide |
to Respondent’ s secretary-treasurer, telephoned Francescani
and said, inter alia, that "he had tried to solve the problem with
Delta and Delta had not cooperated:and that, if Delta continued
to work, [Respondent] would picket"; and (3) on either July 17
or 18, Blum telephoned Martin, the director of - maintenance and —
operation of the Board of Education, and Said, in relevant. part,
that "he had given up being able to resolve matters. with Delta
and that they were going to be forced to picket. '' As also found
| herein, there were, in addition, some written communications
from Respondent to the Board, of Education, namely, three
letters dated July 1, July 29, and August 14, respectively, and
_ one telegram’ dated July 14. An examination of these documents
establishes, I find, the following: (1) Respondent's July 1
letter requested that the Board of Education declare Delta a
non-responsible employer, 21/" and also notified the Board of
— (Continued). Steamfitters, Refrigeration, Petroleum ,
Fitters & Apprentices of Local'298, AF of L., et al v..
County ot Door. a Municipal C Sa nh nti et _ 309
U.S. 3094. 7 :
Such a determination would, according . to the terms of.
the contract between the Board of Education and Delta,
‘result i in a cancellation of the contract.
11/
Lo eee
Ediication of "(Respondent's } intent to take necessary econbmic
action at any location at which we find this employer working.
Specifically we intend to picket the jobsite at P.S. 228 in
_.Brooklyn where we are informed that this company might resume .
work for your organization"; (2) Respondent's telegram of
. July 14 Stated that Delta was in violation of its contract with
Respondent and that the "job will be picketed, *’ and requested,
at the same time, “immediate resumption of Board of Responsi- ©
bility hearing and cancellation of Board of Education contract
[with Delta] under Article V"; (3) Respondent's July 29 letter
was in-further clarification of the above telegram and said ,
“unfortunately we have not been successful [in resolving our
dispute with Delta} and we must insist that there is more than .
- adequate ‘ground for the Board ‘of Review to resume its hearing
with a view to cancellation of the contracts of_ Delta Contracting
Corp"; it also stressed the seriousness of its charges and said,
in that connection, “we want to avoid arly scandals involving
_ execution of-painting contracts, both from the point of view of
_ the Union as well as the Board of*Education and the City of New
York"; and (4) Respogdent's letter of Augyst 14 advised the Board
of Education that “until Delta pays its obligations under its con-
tract with Respondent in respect to employees’ pension, welfare,
insurance and annuity benefits, [Respondent] wil! picket any
jobs which [Delta] should work on or which any of its sub- “£
‘+ contractors [including Strip Clean] should be engaged in on
Delta's behalf.” 18, Finally, I have also found that these oral
and written communications culminated in picketing by Respondent
on September 4 to October 10 at P.S. 228, with picket signs
— I note that this written communication did not, in haec
verba. seek a cancellation by the Board of Education af
its contracts with Delta.
Da. et
which referred to Delta as unfair’ to Respondent because of
underpay ment to insurance and pension funds.
The law ts clear that Respondent may, sili the proviso
to Section 8(b)(4)(B), lawfully engage in “a primary strike or
primary picketing" against Delta and or Strip Clean, = but it
may not, for proscribed objec tives, threaten, restrain or cuerce
the Board of Education, a neutral to the labor dispute, or induce
or encourage the employees of the Board of Educ aon toe nae
in a strike or refusal to perform services owever. Respondent *
contends, tn effect, in its brief, that the essential elements of
a violation of\ Section 8 ()(4)(B) of the Act have not been established.
Thus, it asserts that the oral or written communications which
_were directed to the Board of Education did not constitute acts
of coercion or restraint beéause these communications (1) were
in response to the request of the Board of Education that Re -
spondent keep it advised regarding Respondent's intention to
picket; (2) were, insofar as they were in writing, in accord
‘with the practice of the Board of Education of requiring com-
plaints to be in writing before 1t would take action; and (3)
constituted legitimate demands, in 1s role as a ‘member of the
public, that the Board of Education, a governmental or gamiza -
tion, enforce the terms of its contract with Délia And it urges
further that its picketing was not.edirected against the Beard of
Education and, even if-so directed, such pickéting was 'n the
nature of a primary dispute with the Board of Education, in
that, as_a member of the Public, it was pursuing the legitsmate
objective of getting the-Board of Education, a governmental
aa - The General Compete conceded that Strip Clean was the
ally and/or was aoing the struck work of Delta. As - ’
Such, I find, Strip Clean stands in the same position as
Delta vis a vis Respondent in the instant labor dispute
Ee a CP RE I pa OE tei nc = 6) Ee
s
: ae
Gel - An33
-agency, to enforce a contract’ that the Board of Education had
_ With Delta, with respect to Delta's violation of New York state
law. . .
I am unpersuaded by Respondent's contentions. The oral
and written communications to the Board of Education are to be
' considered together. As such, they constitute pressure upon the
‘ Board of Education to take the necessary steps leading to the
cancellation of its contract with Delta. The consequence of
cancellation would, of course, be the cessation by the Board
of Education of doing business with Delta. This pressure to
cancel was coupled by Respondent with expressions of intention -
to picket so long as Delta continued working for the Board of
Education atP.S. 228 and other jobsites. Although. Respondent
seeks to import a doctrine akin to waiver into the Situatbon
_ by claiming that its communications were not coercive because
they were in response to the request of the Board of Education
at the January meeting to be kept advised regarding Respondent's
intention to picket, such argument is’ unavailing to Respondent
because I have found thai the record does not open its factual
premise that there was such a réquest. However, even assuming
Such a request, the Board of Education would have indicated
thereby no more than that it would be better able to cope with an
objectionable situation involving picketing of school premises,
if it was alerted to Such Situation before the inception of the
picketing. It would be straining to the breaking point to hold .
that the Board of Education onied thereby be implying a waiver
of its right to protection uinder 8(b)(4) of the Act. 20/ And inso-
far as the Board of Education has a practice, upon being hotified ~
that picketing was to occur at a. school, to ask for a written
fe
= Such a waiver would, in any event, be against public policy.
- 7 .
~ .
; a 269 i. | — AR34
cdmmunication to that effect from, the union : ee ed, and
granting that such practice “me invoked here, i,c ons tuted no
more than an effort on the part of the Board: of Education to
‘have the notification of the impending objec Vonable situation
formalized in the interest of being able to cope Wath it better
administratively. Further, while it cannot be denied that, in its
iad
role as a member of the public,. Re spondent was. within ats
rights. in demanding that the Board of Educ ation, as a govern.
mental Grganization, enforce the terms of its c ontract with
Delta, itis, of course, also trué that Respondent was, at all -
relevant times, directly involved in the matter which gave rise
to its demands upon the Board of Education Indeed, in its
‘letter of, July 29 to the Board of Fducation, the only communica-
tion .in which it made mention of its role as a public citizen
in making its demand upon the Board of Education to cancel its -
contract with Delta, Respondent indic ‘ated th: ats demand was
prompted also: by its direct involvement in a labor dispute with
‘ Delta. Thus, the letter, said, ip relevant part, “we want to
‘avoid any scandals involving execuuuon of paniting contracts,
both from the point of view-of our Union. as well as the. Board
of Education and the City of New York * (undersc ering supple dd).
In all these circumstances, I conclude, and find, that Respondent
made clear to the Board of Education through these written and
oral communications tiat it intended to pic ket and .that an ob-
ject of such picketing would he to get the Board of Educatien to
dispute with Delta over the clamhed violation by the latter of ©
. cease doing business with Delt cia of Respondent's labor
; Ri. sz ; 21- .
its union contract. — _ } .
21’ yy ]
— In this connectien, the July 14 telegram, which the July
29 letter was -‘meant to clarify turther, read, in reievant
”
erst he: Ne aie |
| of, “ : *
With respect to Respondent’ Ss. contentions addressed to.
the picketing itself, “it is true that the picket Signs made no >
mention of the Board of Education and mentioned only Respondent’ s
labor dispute with Delt: and further. that the General Counsel
concedes, in its brief, that there has been substantial literal
compliance with Moote Dry Dock standards zs’ in the picketing
that took place at P.S. 228. However; these standards are not |
to be applied on an indiscrimmate per se basis but are to he
regarded merely as ‘aids in determining the uhder lying Statutory
violation. 23/ Here, the picketing does not Stand. in isdlation.
It was preceded by the aforementioned communications which | E
sought to involve, and did involve, the Board of Education in
Respondent's labor dispute with Delta, and, ‘during these
_ Commanications, ‘Respondent foretold its intention to picket the
School, without restriction or limitation, in the event of the |
failure to resolve the labor dispute, and clearly indicated the
objective, because of such failure, of having the Board of -
Education cancel its‘contract with Délta and cease a business :
— (Continued) part, "As Per Letter July 1, 1969 Delta .
' In Violation Of Union Contract Underpavment To Pension
And Insurance Funds a eae To $22, 516. 98 Job Will
Be Picketed. ...
— The standards set forth in Moore Drv eck c co... & —_
9¢7, are, fn substance, that ine pickeung disclosed that.
the dispute. was with the primary employer, that the Picket-
ing occurred when the situs of the dispute was located on™
the premises of the neutral or secondary. employer, that
the picketung was limited to the situs of the dispute, and
that the primary employer was then onpreee in its normal
business at that situs.
‘
- 23,
— See International Brotherhood of Electrical Workers,
Locai Union bof ana Arnegn Lard. 1s azent, and Plauche
Electric Inc., I35 NLRB 350. 229; ‘international Dbrothere
hood Oi Electrical Workers, .Local Union ho. 11. AFL.
- CiO, etal. ana Lc. G. Electric es Inc., et al.
' 66. .
\
\
.
iN
Nos aN a BRINDLE NAN SS MST 0 ny
-
~*
‘ with Delta. It follows therefore that there is no legal substance
to Respondent's contention that its picketing was not directed at
the Board of Education. Nor can Respondent take legal refuge
in its alternative position that, ‘even if its picketing was directed
at the. Board of Education, such picketing was in the nature of a
primary dispute with Board of Education in that, .as a member of
the public, it was pursuing the legitmate objective of getting
the Board of Education, a governmental agency, . to enforce - FS
contract that the Board of Education had with Delta, with re-
spect to Delta's violation of New York state law.’ Thus, -assum-~-
ing. without deciding, that picketing for such a purpose is, in -
the circumstances, primary picketing, 24/ I cannot find, .on this
record, that this was the only purpose of the picketing. ‘Thus,
the picket signs made no mention- that the. ‘picketing was. for the
“purpose of eliciting a public response: ‘to ‘an alleged: failure of .
_ the Board of. Education to enforce a contract it had. with Delta, »
- with respect | to Delta’ Ss —— of New York state law. Indeed,
cif N.L.“R,B. v. Building Service Employees 396 F. 2d 131
“i ea 1, cited by Respondent, is not dispositive .of the
issue. The cited case involved a petition to hold a’union
in contempt of the Court's decree enforcing the Board's
,cease and desist order, grounded on 8(b}(4)(B) violations:
“One of the matters alleged in support of contempt was
the picketing by the union of the Massachusetts Board of
Educati@m at the building, housing. the Department of
Education, in an attempt ‘to prevent the Department from |
” awarding a building-cleaning contract to a-non-union |
cleaner. Although the Court rétused to hold. the union in
contempt for such picketing, it did so because, in its
view, the picketing of a State agency, which has no custo-—
mers raised auestions sn ay different from the. ~
union's picketing of private emplbvers which gave rise
to the Board. order, and this called for initial statutory
_interpretation|by the Board. And,the Court held further .
“that "this action is intended to be wifhout prejudice to any
- further Board. action to determine whéther the Depar tment
ac tivity violated rion 8(b) (4). ara
le - [ 272] ey ey
the only reference thereon was to Respondent's labor dispute with
Delta. AndI have heretofore found that, in the one instance
during Respondent's communications to the Board of Education *
in which it made mention of its role as a public citizen in making
its demand upon the Board-of Education to cancel its contract
with Delta, Respondent indicated that its demand was also
' prompted by its own direct involvement tn a labor dispute with
‘Delta. Accordingly, as the picketing had as an objective the
Tessation by the Board of Education to do business with Deita
because of Respondent’ s labor dispute with Delta over its
ciaiméd violation by the latter of its union —n which is
a prohibited objective under the et, the picketing herein runs
afoul of the Act. ;
e° It follows from all the foregoing, and I-conclude, ‘and find,
that by its written and oral communications revealing its in-
- tention to picket, and by its picketing at P.S. 228, Respdhdent
threatened, coerced ‘and restrained the Board of Education,
where an object thereof was to force or require it to cease doing
business with Delta and/or Strip Clean, in violation ef Section
8(b)(4)(ii)(B) of the Act. 22° However, 1 find differently with
respect to the allegations of the complaint, as amended, that
Respondent violated 8(>){4)(i)(B) by the picketing herein. The
record fails to saa that any of the empleyees of the
— _- See Local 2669. affiliated with Suffolk County District
Council oi Carpenters. Uniliea proinernoog
omers Oi America. al :
‘ O. 160: internationa: eroiner n00s «
-cal Workers. Loca! Union ho- Are-Civ, € "
iectric, LOmtractors. inc.. €i ai.) SuDra: Du ae -.
vice emopiovees internauonal Union. Local No. 105
Uingusrias Janitorial bervice, inc., et al. °
ee
Board of Education were induced or. encouraged by Respondent .
"
to engage in a work stoppage. = And I cannot find, in’ view
ofthe concession of the General Counsel that the picketisigns
and theFicketing conformed to the standards of Moore Dry Dock,
that the necessary effect of the picketing was to induce or
encourage any employees of the Board of Education at P.S. 228,
who may have been exposed thereto, to engage in such stoppage
in violation of the Act. Accordingiv, I find that the allegations
of the complaint, as amended. that. Respondent violated Section
8 (b)(4)(i) (B) have not been. sustained. 27/ ; |
Upon the basis of the ‘above iindings 6f fact and yen the
-entire record in the case, I make the following:
, Conclusions of Law
1. The Board of Education is-a person engaged in an
industry affecting commerce within the meaning of the Act.
2. Respondent is a er ——— within the mean-
ing of the Act. ;
3. By threatening, restraining or coercing a person
in an industry affectung commerce with an object of forcing him
to cease doing business with afother person, Respondent
has engaged in, and is engaging in, unfair labor practices :
within the.-meaning of Section 8b) (4) (11) (B).. Bi. .
| 4. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the Act.
ERIE DSIRE RESID. 2 =
= I note that the record also fails to disclose the nature and
extent of the employee compjement of the Board of Educa-
tion at P.S. 228 at the time .of the picketihg herein. All
that does appear is that empiuvees of Strip Clean were on —
the jobsite auring the picketing until they stopped work
on September 26-at the instance of Strip Clean hé¢ause
Strip Clean was short of funds.
— See Building Service Emplovees International Union, Local
‘No. 409 (inaustrial Janitorial Service, inc., ei ai.), supra.
eee | are A-39
“ae Respondent has not induced or encouraged employ-
ees to engage in a work- ‘stoppage in violation of 8(b)(4)(1)(B) of
the Act.
The Remedy
Having found that Reseendens has violated Section 8(b)
(4) (ai) 0B) of the Act, I will recommend that it cease and desist
_ therefrom and that it take certain affirmative action designed to
effectuate the policies of the Act: —
RECOMMENDED ORDER
Upon the basis of the foregoing fincings of fact and ‘éan-
clusions of law and upon the entire record in this case, I recom-
mend, in order to effectuate the policies- of the Act, that Re-
spondent, New York District Council No. 9 Brotherhood of
Painters, Decorators and Paperhangers of America, ahaa
its officers, “agents, Successors and assigns shall:
1. Cease and desist from
(a) Threatening, coercing or restraining the Board _
of Education of the City of New York, or any other: ‘person en- F
gaged in commerce or in an industry affecting commerce, _where
an object thereof is to force or require the Board of Education of
the City of New York, or any Other person, to cease doing busi-
ness with Delta Contracting Corporation and/or Strip. Clean
_ Floor Refinishing & Painting Corp.
-2.* Take the following affirmative action: —
; (a) Post in conspicuous places’ at its offices and
masetiog halls, copies of the notice, marked "Appendix.A. " 38/
-3G 7 =:
te
— .Ih the event no exceptions are filed as provided by Section .
, 202. 46 of the Rules and Regulations of the National Labor |
-. ee i
Y
Pst aa
Copies of ‘said notie e,. on forms provided hy the Region; il Direc-
tor for Region 29, shall, after being Signed bya representative
of Respondent, be posted by Respondent immediately upon re=
ceipt thereof and maintained for 60 consec utive days thereafter
- in conspicugus places, inc luding all places where riotic es to
members are customarily posted. Reasonable steps shall be
:
taken by Respondent to insure that said notc es are not ullered,
defaced, or covered by any other material
| (>) Sign and mail sufficient copies of Said nouce
to the Said Regional Direc tor for posting by the Board of.
Education of the City of New-York, Delta Contracting Corporae- .
tion, and Strip Clean Floor Refinishing & Painting Corp., uf
' they are willing, at locations where notices to their employees
od
are customarily posted.
{c) Notify. the said Regional Director, in writing,
- within 20 gays from the date of receipt af this Trial Examuner' >
Decision what steps Respondent has taken to comply he rewith. 2
pA : Sis
— (Continued) Relations Board, the findings, conclusions,
recommendations and Recommended Order herein shail,
as provided in Section 102.48 of the Rules and Regula-
tions, be adopted by the Board and become its findings,
~conciusions, and order, and al) ohjections thereto shall
be-deemed waived for all-purposes. In the event’ that the
Board's Order is enforced by a judgment of a United
- States Court of Appeals. the words in the nouce reading,
"POSTED BY ORDER OF THE NATIONAL “LALOR.RE-
LATIONS BOARD" shal) be chanved to read “POSTED ..
PURSUANT TO A JUDGMENT OF THE-UNITED STATES .
COURT OF APPEALS ENFORCING AN ORDER OF THE ps
NATIONAL LABOR RE LATIONS BOARD." 3
29/
—_— In the eyent these Recommendations are adopted by the
Board, this provision shall be modified to read: "Notify.
_ the aforesaid. Regional Director, in writing, within 10 i
‘days from the date of this Order, what ee: Respondent “ -
has taken to comply herewith. Ce ates /
—_-
—
i ae : ot eek
It is iene Ordered that the complaint, , as amended, be,
“and at hereby. is, dismissed insofar as it alleges Violations
not found herein. is
Dated at Washington, ©:
| - ee 8
ees ‘s/ Marry H..Kuskin ae
i eS - ‘TRIAL EXAMINER - a”,
9
e .
* *
= e&. % red
a ‘% ‘
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