# Petition for Writ of Certiorari — New York District Council No. 9, International Brotherhood of Painters & Allied Trades v. National Labor Relations Board > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_0465%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1972 - **Citation:** 405 U.S. 988 ## Text Le et | 1] i | e i a : ; Ma | & ea WOT? UE mn ¢ _ ik & ° soa1" THE Supreme Court of: the Muited States é 1971 -October Term igs No. aad Cc 4} ay 4 eae i . r4 1 . Oo v ¢ vig __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 -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 -- *. . 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 * 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. — 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 ‘% ‘ --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_0465%3A1. Public record. Not legal advice.