District Council 9, Brotherhood Of Painters

National Labor Relations Board - Board Decisions

Jun 12, 1969

176 N.L.R.B. 599 (N.L.R.B. 1969)

DISTRICT COUNCIL 9, BROTHERHOOD OF PAINTERS
District Council 9, Brotherhood of Painters,
Decorators and Paperhangers of America,
AFL-CIO and Alfred Sherwood . Cases 29-CC-161
and 29-CC-170
June 12, 1969
DECISION AND ORDER
By CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND ZAGORIA
On March 5, 1969, Trial Examiner James V.
Constantine issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
Thereafter, the General Counsel and Respondent
filed exceptions to the Decision and supporting
briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with these cases to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in these cases, and hereby adopts
the findings,' conclusions,' and recommendations of
the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, and
orders that the Respondent , District Council 9,
Brotherhood of Painters, Decorators and
Paperhangers of America , AFL-CIO, New York,
'We note and correct the following errors in the Trial Examiner's
Decision which do not affect the result in this case . The charge in Case
29-CC- 161 was filed on September 17, 1968 , and not September 19, 1968.
Joseph Sharkey's visit to Joseph Villano at Gracie Town House during the
course of the general strike and the initial picketing by Respondent of
Gracie Town House occurred about the first week in September 1968 and
not on September 16, 1968 . Also, Sharkey 's second visit to Villano at
Gracie Town House , his first visit following the termination of the general
strike , occurred on or about September 16, 1968 , and not on October 29,
1968. With regard to what was said during these visits on the above dates,
we rely solely on the credited testimony of Villano . Further, the General
Counsel did not, as stated by the Trial Examiner , limit his claun of
unlawful conduct to events on and after September 16, but included therein
the conversation which preceded the termination of the general strike on
September 9.
'We agree with the Trial Examiner 's conclusion that the Board 's decision
in Plauche Electric, Inc., 135 NLRB 250, relates to situations not present
herein , but do not rely on his interpretative comments with respect to that
decision.
599
New York, its officers, agents, and representatives,
shall take the action set forth in the Trial
Examiner's Recommended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JAMES V. CONSTANTINE, Trial Examiner: These are two
unfair labor practice cases brought against the
above-named Respondent, District Council 9, under the
authority of Section 10(b) of the National Labor
Relations Act, herein called the Act, 29 U.S.C. 160(b).
They have been consolidated for purposes of trial. The
charge in Case 29-CC-161 was filed on September 19,
1968, against said Respondent by Alfred Sherwood, and a
complaint based thereon was issued on October 16, 1968,'
by the General Counsel of the National Labor Relations
Board (herein called the Board), through the Regional
Director for Region 29 (Brooklyn, New York). That
complaint alleges that Respondent violated Section
8(b)(4)(ii)(B) the Act.
Thereafter Alfred Sherwood on November 15 filed
another charge against said Respondent in Case
29-CC-170. On November 29 said Regional Director
issued (1) an Order consolidating Cases 29-CC-161 and
29-CC-170, and (2) a consolidated amended complaint.
Said consolidated amended complaint alleges that
Respondent violated Section 8(b)(4)(i)(B) and (ii)(B), and
that such conduct affects commerce within the meaning of
Section 2(6) and (7), of the Act. Respondent has answered
admitting some facts but denying that it committed any
unfair labor practices.
Pursuant to due notice this case came on to be heard,
and was tried, before me at Brooklyn, New York, u..
December 11 and 16. All parties were represented at and
participated in the hearing, and had full opportunity to
adduce evidence, examine and cross-examine witnesses,
submit briefs, and offer oral argument. The General
Counsel and Respondent argued orally. Briefs have been
received from the Respondent and the General Counsel.
Upon the entire record in this case, including the
stipulations of the parties, and from my observation of the
witnesses, I make the following:
FINDINGS OF FACT
1. AS TO JURISDICTION
Albert Ginsberg, of New York, New York, is engaged
in the real estate business, operating under the trade name
of Algin Management Company. Algin manages buildings
owned by corporations wholly owned by Ginsberg or in
which he owns a controlling interest. Annually Algin
receives gross revenues of between $7,000,000 and
$8,000,000. These revenues include in excess of $500,000
from apartments owned or controlled by it in the State of
New York. Revenues also include in excess of $100,000
from four office buildings it owns or controls in the State
of Maryland. Its Maryland buildings are leased to four
different agencies of the United States, each of said
agencies paying annual rentals in excess of $100,000.
In addition Algin annually purchases for its New York
apartments fuel valued in excess of $50,000 from Petro
'A l l ates mentioned herein refer to 1968 except where otherwise
specifically noted.
176 NLRB No. 82
600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Oil in Brooklyn , New York, electric power valued in
excess of $100,000 from Consolidated Edison Company in
New York, New York, and refrigerators and related
kitchen appliances valued in excess of $30,000 from
Frigidaire Division of General Motors Corporation in
Lansing, Michigan.
In the year preceding the hearing in this proceeding,
Alfred Sherwood , an individual engaged as a painting
contractor in Forest Hills, Queens, New York, New York,
and the Charging Party herein , performed painting
services for Algin in New York, New York, valued in
excess of $50,000.
I find that Algin and Sherwood are engaged in
commerce within the meaning of Section 2 (6) and (7) of
the Act, and that it will effectuate the purposes of the Act
to assert j urisdiction over Respondent in this proceeding.
Karl Gerber et al., d/b/a Parkview Gardens, 166 NLRB
No. 80.
H. THE LABOR ORGANIZATION INVOLVED
District Council 9, Brotherhood of Painters, Decorators
and Paperhangers of America, AFL-CIO, herein called
the Union, is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. General Counsel's Version
Gracie Town House, Inc., owns and controls Gracie
Town House , an apartment building in New York, New'
York. The managing agent for this building is Carlyle
Construction. Joseph Villano is employed as
superintendent and resident manager of said Town House
by Gracie Town House , Inc., but his superiors are Messrs.
Epstein and Zinn of Carlyle Construction. Villano
responsibly directs nine employees, whom he has authority
to discharge. I find he is a supervisor under Section 2(11)
of the Act.
In the late summer of 1968 the Union engaged in a
citywide or general strike in New York City against all
painting contractors using District Council 9 members.
During this strike the Union picketed a building in close
proximity to Gracie Town House. On one occasion during
the strike the captain of such pickets told Villano that he,
the captain , saw a painter with a ladder enter Gracie
Town House, but Villano assured him it was one of
Gracie ' s porters and not a painter . Both during and after
the citywide strike pickets appeared in front of Gracie
Town House.
A few days later this captain, accompanied by Joseph
Sharkey , again spoke to Villano , this time mentioning
that he, the captain , observed Sherwood ' s painters enter
Gracie Town House and that, therefore, the captain
"would have to call his delegate." Within a day (and while
the general strike was in effect) Villano was visited by
Joseph Sharkey , admittedly a business representative of
the Union and an agent thereof. (This was about
September 16, 1968.) When Sharkey asked Villano who
was painting the building, the latter replied that Al
Sherwood was doing this work. Continuing, Sharkey
asserted that he knew Sherwood, that Sherwood belonged
to "this so called paper union, Local 400," and that
District Council 9 did not recognize Local 400. Then
Sharkey insisted that Villano "would have to stop
Sherwood from painting in the building ," and threatened
to picket Gracie Town House if Sherwood remained on
the job . Within a few days the building was picketed. The
picket signs read "Painters in New York City on strike
for better wages and conditions . Brotherhood of Painters,
Decorators , AFL-CIO, District Council Number 9." As a
result Villano had Sherwood stop painting at the
apartment. Villano also assured Sharkey that Sherwood
would be stopped from painting at Gracie Town House
during the period of the citywide strike.
Following the termination of the general or citywide
strike of the Union , Sherwood resumed his painting job at
Gracie Town House . Sometime in September , but after
the citywide strike of the Union had ended , Sharkey again
visited Villano. (I find the correct date to be October 29,
1968.) No pickets were present at Gracie Town House at
the time . After Sharkey stated that he understood that Al
Sherwood was performing painting work in Gracie Town
House , he insisted that Villano "would have to stop
[Sherwood ] from painting [because] . Sherwood does
not belong to Council 9 , he belongs to Local 400 , which is
considered a paper union ." Sharkey concluded by
threatening "to put up pickets in front of the building."
Villano answered that he would have to telephone his
boss, Mr. Epstein. Thereupon , Villano made such a call in
the presence of Sharkey, telling Epstein that Sharkey
wanted Villano "to stop the painting in the building."
Then Sharkey spoke to Epstein . In this latter conversation
Sharkey informed Epstein that Sherwood "did not belong
to Council 9," that Sharkey did not recognize Local 400
as a " bona fide union," and that Sharkey "would have to
put pickets in front of the building."
However , Sherwood remained on the job . Not long
after Sharkey ' s above-mentioned visit to Villano pickets
appeared in front of Gracie Town House. I find this was
on October 30. Such picketing has been continuous,
except for a short period of "discontinuance ," since then.
Said picketing , which continues from 8 : 30 a.m . to about
3:30 p. m. on the days when Sherwood performs work at
Gracie Town House , had not ceased as of the time of the
hearing in this case . Sherwood ' s name is carried in crayon
or indelible ink on the picket signs.
B. Respondent 's Evidence
In his oral argument Respondent ' s counsel stated
"there is no question that District Council 9 has been
picketing Sherwood and there is no question that the
object of picketing Sherwood is to . organize his
employees for the purpose ultimately of having Sherwood
recognize District Council 9." Nevertheless said counsel
further contended that "we have a right to inform those
employees through picketing and other means . . . to join
up with District Council 9...," but he denies that illegal
secondary action was directed at Gracie Town House.
Respondent 's evidence , supporting its defense was given
by Joseph Sharkey, and is narrated in the paragraphs
which follow below in this section.
Joseph Sharkey, a special organizer for District Council
9, had occasion during the citywide strike to visit pickets
patrolling a building at 333 East 89th Street in New York
City. During the course of that visit the picket captain,
George Frank, a member of Sharkey's union, informed
Sharkey that he, Frank, observed someone carrying paint
and ladders to a building located at 401 East 89th Street
and that, therefore, Frank placed two pickets in front of
this building. Frank also said that the building manager at
401 East 89th Street claimed Sharkey had given
DISTRICT COUNCIL 9, BROTHERHOOD OF PAINTERS 601
permission for painting to be performed there . This last
assertion by Frank caused Sharkey to visit the building
with Frank because Sharkey had not only not given
anyone permission to paint during the strike, but Sharkey
had never been to 401 East 89th Street at any prior time.
When Sharkey, accompanied by Frank, arrived at 401
East 89th Street, Sharkey found two District Council 9
pickets, "carrying general strike picket signs ," stationed in
front of the building. Entering the apartment office,
Sharkey asked Villano, the building superintendent, for
the identity of the contractor who did the painting for the
landlord. When Villano replied that Sherwood had the
contract, Sharkey insisted that he, Sharkey, never gave
Sherwood permission to paint there although "Frank says
that I [Sharkey] gave them permission ." However Villano
assured Sharkey that no one was painting in the building
at the time and no one would paint there "during the
strike ." Since Sharkey became satisfied that no painting
was being performed and Villano having promised there
would be no further painting if Sharkey removed the
pickets, he removed the two pickets. As he left Sharkey
told Villano that "Sherwood was not one of our
contractors in District Council 9," i.e., "a contractor who
has a union shop contract and employs District Council 9
members." Thereafter District Council 9 did not picket
401 East 89th Street for the duration of the general strike.
About September 9, 1968, the general strike ended. A
few days later Sharkey, as a result of pointed questions,
learned from Villano that a painter was working in some
rooms at 401 East 89th Street. Thereupon Sharkey spoke
to this painter , ascertaining that the latter ' s name was
Argyris, an employee of Sherwood, and eliciting the
information that Argyris did not belong to any union and
that Argyris was paid at the rate of $42 "per apartment."
Immediately thereafter Sharkey went to see Villano and
told the latter that Argyris did not belong to District
Council 9. Expressing surprise at this, Villano telephoned
to Mr . Epstein , his superior , informing the latter of this
fact. Then Villano turned the telephone over to Sharkey.
Explaining to Epstein that Argyris "was nonunion, was
working under the prevailing rate of pay in the area, [and]
was unfair competition to union contractors and union
bosses," Sharkey asked Epstein "to find out what we
could do to straighten this matter out." Epstein answered
that Sherwood and Argyris "belonged to this Local 400."
Sharkey retorted that Local 400 was not affiliated with
the Brotherhood of Painters and Decorators, "was not a
painters ' union ," and, "as far as we were concerned," it
engaged in "sort of 'sweetheart deals "' with contractors.
But Sharkey insists that he did not ask either Villano or
Epstein "to knock Sherwood off because he was
nonunion ," or to have Sherwood stop painting there.
However, Sharkey did tell Epstein that pickets were
removed from in front of 401 East 89th Street because
both Villano and Epstein had assured Sharkey that "no
painting would be done in the building" by Sherwood.
About October 29, 1968, on a visit to the building,
Sharkey ascertained from Villano that one of the
apartments at 401 East 89th Street was being painted by
an employee of Sherwood named Martin Medina. This
employee told Sharkey that he, Medina, was nonunion but
that his boss, Sherwood, belonged to Local 400. So
Sharkey placed pickets at the building on the next day,
October 30, 1968. They have remained there since that
date . The picket signs bear the legend that "Painters work
being done by Sherwood Paint Company is below decent
wages and work standard established in this area by
District Council Number Nine , Brotherhood of Painters,
Decorators, Paperhangers of America , AFL-CIO."
IV. CONCLUDING FINDINGS AND DISCUSSION
Generally, all of the ingredients enumerated below must
be established by the General Counsel , upon whom rests
the burden of proof, in order to prove a violation of
Section 8 (bX4)(i)(B ) or (ii) (B):
(1) A labor organization engages in specified
conduct; and
(2) that conduct (in the case of (i)(B )) consists of a
strike , or induces or encourages a strike or a refusal to
perform services, or (in the case of (ii )(B)) amounts to a
threat , coercion , or restraint; and
(3) an object of such conduct is to force or require
any person to cease using, selling , handling,
transporting , or otherwise dealing in the products of
any other person , or to cease doing business with any
other person.
The question is whether the General Counsel has
sustained his burden of proof . Although much of the
evidence is not in dispute , I credit General Counsel's
witness Villano in those instances in which he is
contradicted by the testimony of Respondent ' s witness
Sharkey . This resolution of credibility issues is based not
only on the demeanor of the witnesses , but also because
Villano is a disinterested witness in a controversy between
Sherwood and District Council 9, so that it is less likely
that Villano's testimony will be colored by a wish to
accommodate it to a desired end.
Manifestly District Council 9 is a labor organization
and I so find.
The next question is whether the admitted picketing
constitutes inducement and encouragement as
comprehended by Section 8(b)(4)(i). It is my opinion, and
I find that it does . Jones and Jones , Inc., 144 NLRB 49,
52; J. C. Driscoll Transportation , Inc., 148 NLRB 845,
850. Nevertheless , if such picketing conforms to Moore
Dry Dock standards (92 NLRB 547, 549), it does not
contravene Section 8(b)(4)(i)(B ) even though it takes place
at the premises of a secondary neutral employer . In this
connection I find that District Council 9 has a dispute
with Sherwood, that this dispute is primary , and that
Sherwood is the primary employer . Further, I find that
District Council 9 has no dispute with Gracie Town
House , and that Gracie is a neutral or secondary
employer , and that Gracie ' s apartment building is a
common sit us when Sherwood is painting there.
Additionally I find that at all times material Sherwood
has had an agreement with Gracie Town House to paint
its apartment building.
Preliminarily it may be mentioned that the General
Counsel does not attack as unlawful any conduct of
District Council 9 occurring prior to September 16, 1968.
It is therefore unnecessary to decide whether such
activities of District Council 9 violate the Act.
A. The Picketing of September 16, 1968
However, on September 16, 1968, Respondent did
picket Gracie Town House with a sign which did not
mention Sherwood. I find that since Respondent had no
dispute with Gracie that such picketing is secondary, and
therefore fails to comply with Moore Dry Dock
guideposts for two reasons:
602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) The signs failed to identify Sherwood as the only
person at these premises with whom Respondent had a
dispute; and
(b) Sharkey told Villano that Gracie "would have to
stop Sherwood from painting in the building," thus
evidencing an unlawful objective to replace Sherwood
rather than pursuing the lawful objective of informing the
public of a primary dispute between Sherwood and
Respondent . See Kaynard v. District Council 9, 70
LRRM 2467, 2470 (D.C.N.Y); L. G. Electric
Contractors, Inc., 154 NLRB 766, 767. Even on Sharkey's
own testimony I find that he told Villano there would be
pickets in front of Gracie House as long as Sherwood was
painting there . This warrants the inference , which I draw,
that the object of the picketing was not confined to
Sherwood. Riss & Company. Inc., 130 NLRB 943,
949-950.
Accordingly, I find that the picketing of Gracie on
September 16, 1968, failed to conform to Moore Dry
Dock standards and that it was secondary as to Gracie. It
follows, and I find , that this picketing amounts to
inducement and encouragement within Section
8(bx4)(i)(B) of the Act, unless it can be salvaged under
Plauche Electric, Inc., 135 NLRB 250.
But Plauche Electric relates to situations presented by
an ambulatory situs of the primary employer, rather than
a common situs harboring both primary and secondary
employers. An ambulatory situs , as far as I can ascertain,
is one which by its nature is designed to travel , such as a
moving vehicle . But I find that Sherwood was not engaged
in a business using vehicles as a substantial part of his
business . Hence I find that Plauche Electric is inapplicable
here . Even if it is , I find a violation by Respondent as
described below.
On the facts unfolded by the record, I find that an
object of Respondent ' s said picketing was to force or
require Gracie Town House to cease doing business with
Sherwood. This is because I credit Villano that Sharkey
told him that (a) District Council 9 did not recognize
Sherwood's "paper" Local 400, and (b) Villano "would
have to stop Sherwood from painting in the building."
Patently this language connotes that Sharkey wanted
Gracie Town House to cease doing business with
Sherwood.
On the basis of the foregoing findings, and on the entire
record, I find that the picketing under consideration
violates Section 8(b)(4)(iXB) of the Act . Wilson Teaming
Co., 140 NLRB 164.
B. The Picketing of October 30, 1968
On about October 29, 1968, Sharkey demanded of
Villano that the latter would have to stop Sherwood from
painting at Gracie Town House because Sherwood
"belonged" to Local 400, a "paper" union . Sharkey also
told Epstein , Villano' s superior , that pickets would be
placed in front of the building if Sharkey' s said demand
was ignored . Nevertheless , Sherwood was not removed
from the job.
The next day, October 30, District Council 9
commenced picketing Gracie Town House with placards
reading "Painters work being done by Sherwood Paint
Company is below decent wages and work established in
this area by District Council Number Nine, Brotherhood
of Painters, Decorators, Paperhangers of America,
AFL-CIO." Such picketing has continued since then,
except for a short period of "discontinuance," during
working hours on working days of Sherwood.
On the surface, the picketing since October 30 appears
to accord with the criteria promulgated in Moore Dry
Dock, 92 NLRB 547, 549. In other words (a) the
picketing was strictly limited to times when Sherwood's
men were working on the secondary employer's premises;
(b) at the time of the picketing Sherwood was engaged at
the common situs , i.e., Gracie Town House , in his normal
business of painting ; (c) the picketing was limited to a
location reasonably close to the place where Sherwood
was painting ; and (d ) the picketing announced that the
dispute was confined to Sherwood, the primary employer.
But both the Board and the courts have shown little
hesitancy in looking below the surface to discover whether
picketing at a common situs is intended to attain ends
other than those declared on the picket signs. I proceed to
do so. While I find that the message on the picket signs is
innocuous and, therefore , lawful , I also find that
Respondent's conduct nullified and contradicted that
message . In this connection I find that Sharkey told
officials of Gracie Town House that he wanted them to
stop Sherwood ' s painting in the building because Sharkey
did not recognize Local 400 as a " bona fide union," and
that Sharkey would have to place pickets in front of the
building if Sherwood remained on the job.
This demand of Sharkey is clear in its meaning and
implications . It does more than publicize a dispute
between Respondent and Sherwood . It also connotes that
Sharkey insists that Sherwood be taken off the job
because he is not a union contractor recognized by
District Council 9. Hence I find that Respondent by this
demand made a direct and purposeful effort to involve
Gracie Town House, The neutral employer, in a dispute
between Sherwood and the Union. N.L.R.B. v. Associated
Musicians , 226 F.2d 900, 904 (C.A. 2), cert. denied 351
U.S. 962. And it is immaterial that Respondent may also
have had a second, lawful objective if it also had an
objective of enmeshing a neutral employer in its dispute
with Sherwood, the primary employer. N.L.R.B. v.
Denver Bldg. & Construction Trades Council, 341 U.S.
675, 688-689.
In this connection, I find that an object of the picketing
was to put pressure on Gracie Town House, so that
Gracie would cancel its contract with Sherwood, the
primary employer. "Were it otherwise [Respondent] need
only have said that if [Sherwood] paid wages up to those
in area contracts, the picketing would cease." Kaynard v.
District Council 9, 70 LRRM 2467, 2470 (D.C.N.Y.).
It follows, and I find, that the picketing of Gracie
Town House since October 30 violates Section
8(b)(4)(iXB) of the Act. Local 2669, affiliated with Suffolk
County District Council of Carpenters and Joiners of
America, AFL-CIO, 173 NLRB No. 188.
C. Threats, Coercion, and Restraint
Section 8(b)(4)(iiXB) makes it an unfair labor practice
for a labor organization or its agents
to threaten , coerce , or restrain any person engaged in
commerce or in an industry affecting commerce where .
. . an object thereof is . forcing or requiring any
person . . . to cease doing business with any other
person ....
DISTRICT COUNCIL 9, BROTHERHOOD OF PAINTERS 603
1. The events of September 16, 1968
About September 16 Respondent picketed Gracie Town
House under circumstances found above to transgress
Section 8(b)(4Xi)(B) of the Act. I now find that said
picketing also constitutes forbidden coercion and restraint
within the contemplation of Section 8(b)(4)(ii)(B) of the
Act. Boston Gas Company, 137 NLRB 1299, 1304;
Kisner and Sons, 131 NLRB 1196, 1200-01; J. C. Driscoll
Transportation, Inc. 148 NLRB 845, 852.
In addition, I find that Sharkey is an agent of
Respondent and that he warned Villano that Respondent
would picket Gracie Town House if Villano did not stop
Sherwood from painting in the building . This warning, in
the circumstances of the dispute , constituted a threat
within the proscription of Section 8(b)(4)(ii)(B) of the Act,
and I so find. N.L.R.B. v. International Brotherhood of
Electrical Workers, AFL-CIO, and its Local Union No.
769, 405 F.2d 159 (C.A. 9). See N.L.R.B v. Fruit and
Vegetable Packers, Local 760, 377 U.S. 58, 68; N.L.R.B.
v. District Council of Painters No. 48, 340 F.2d 107, 111
(C.A. 9).
And I find that said threats were directed to a
secondary person, Gracie Town House, with an object of
forcing or requiring Gracie to cease doing business with
Sherwood. N.L.R.B. v. International Hod Carriers,
Building, and Common Laborers' Union of America,
Local No. 1140, AFL-CIO, 285 F.2d 397 (C.A. 8), cert.
denied 366 U.S. 903.
Accordingly, I find that said picketing and the threat to
picket if Sherwood remained on the job are forbidden by
Section 8(b)(4)(ii)(B) of the Act.
It is desirable to point out that I find Sherwood is the
primary person and that Gracie Town House is a neutral
or secondary person. This is because I find that
Respondent has a primary dispute with Sherwood, that
Respondent has no dispute with Gracie , and that
Respondent' s demands upon Gracie Town House are
secondary . That such demands are secondary emerges
from the fact, which I find, that they have arisen only
because of a primary and underlying dispute between
Respondent and Sherwood relating to Sherwood ' s painting
jobs. Catalina Island Lines, 124 NLRB 813, 830.
2. The Events of October 29 and 30, 1968
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
Those activities of Respondent set forth in section IV,
above, found to constitute unfair labor practices,
occurring in connection with the operations of Sherwood
described in section I, above, have a close, intimate, and
substantial relation to trade, traffic, and commerce among
the several States, and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
VI. THE REMEDY
Having found that Respondent has violated Section
8(b)(4)(i)(B) and (ii)(B) of the Act, it will be recommended
that it be ordered to cease and desist therefrom and that it
take certain affirmative action designed to effectuate the
policies of the Act. Since Respondent has engaged in a
narrow type of secondary boycott, i.e., against Sherwood
only, the order recommended will be limited to protecting
Sherwood against proscribed secondary pressures. On the
record before me I am unable to find an order broader in
scope is warranted.
Upon the basis of the foregoing findings of fact, and
upon the entire record, I make the following:
CONCLUSIONS OF LAW
1. District Council 9 is a labor organization within the
meaning of Section 2(5) of the Act.
2. Alfred Sherwood and Algin each is engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
3. By (a) picketing in a manner calculated to induce
and encourage individuals employed by Gracie Town
House and other persons (other than Sherwood) to engage
in a strike or a refusal in the course of their employment
to perform services, and (b ) threatening , coercing, and
restraining Gracie Town House, in both cases with an
object of forcing or requiring Gracie Town House to cease
doing business with Sherwood, Respondent has committed
unfair labor practices comprehended by Section
8(b)(4)(i)(B) and (ii)(B) of the Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
As found above Sharkey on or about October 29
insisted that Villano prevent Sherwood from further
painting at Gracie Town House and warned Epstein that
pickets would be placed in front of the building if this
demand was not met . For the reasons mentioned above in
finding a similar demand on about September 16
constituted a threat, I find that this ultimatum on about
October 29 amounts to a threat.
On about October 30 Respondent commenced picketing
Gracie Town House and has maintained this activity since
then. For the reasons set forth above relating to the
illegality of the September 16 picketing, I find that the
picketing on and since October 30 constitutes coercion
and restraint of Gracie. Further I find that Sherwood is
the primary employer and that Gracie is a neutral or
secondary employer so far as this picketing is involved.
And I find that an object of Respondent's conduct
outlined above is to force or require Gracie to cease doing
business with Sherwood. Hence I find that such conduct is
embraced within the proscription of Section 8(b)(4)(ii)(B)
of the Act.
RECOMMENDED ORDER
Upon the basis of the above findings of fact and
conclusions of law, and upon the entire record in this case,
I recommend that the National Labor Relations Board
enter an Order that Respondent, and its officers, agents,
representatives, successors , and assigns , shall:
1. Cease and desist from:
(a) Inducing or encouraging , by picketing or other
means , individuals employed by Gracie Town House or
any other person (other than Sherwood) to engage in a
strike or a refusal in the course of their employment to
perform services, where an object thereof is to force or
require Gracie Town House or any other person to cease
doing business with Sherwood.
(b) Threatening, coercing, or restraining Gracie Town
House, or any other person (other than Sherwood), where
an object thereof is to force or require Gracie Town
House or any other person to cease doing business with
Sherwood.
604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Post at the business offices and meeting halls of
District Council 9 copies of the attached notice marked
"Appendix."' Copies of said notice, on forms provided by
the Regional Director for Region 29, after being signed by
a representative of Respondent thereunto duly authorized,
shall be posted by it immediately upon receipt thereof and
be maintained by it for 60 consecutive days thereafter in
conspicuous places , including all places where notices to
members are customarily displayed. Reasonable steps
shall be taken by Respondent to insure that said notices
are not altered , defaced, or covered by any other material.
(b) Notify the Regional Director for the Twenty-ninth
Region , in writing , within 20 days from the receipt of this
decision , what steps Respondent has taken to comply
herewith.'
'If this Recommended Order is adopted by the Board , the words "a
Decision and Order" shall be substituted for the words "the Recommended
Order of a Trial Examiner" in the notice . If the Board ' s Order is enforced
by a decree of a United States Court of Appeals , the words "a Decree of
the United States Court of Appeals Enforcing an Order" shall be
substituted for the words "a Decision and Order."
'If this Recommended Order is adopted by the Board , this provision
shall be modified to read : "Notify said Regional Director , in writing within
10 days from the date of this Order , of the steps which Respondent had
taken to comply herewith."
APPENDIX
Pursuant to The Recommended Order of a Trial
Examiner of The National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that:
WE WILL NOT induce or encourage , by picketing or
any other means , individuals employed by Gracie Town
House or any other person (other than Alfred
Sherwood ) to engage in a strike or a refusal in the
course of their employment to perform services, where
an object thereof is to force or require Gracie Town
House or any other person to cease doing business with
Alfred Sherwood.
WE WILL NOT threaten , coerce, or restrain Gracie
Town House or any other person (other than Alfred
Sherwood ), where an object thereof is to force or
require Gracie Town House or any other person to
cease doing business with Alfred Sherwood.
Dated By
DISTRICT COUNCIL 9,
BROTHERHOOD OF
PAINTERS,
DECORATORS AND
PAPERHANGERS OF
AMERICA, AFL-CIO
(Labor Organization)
(Representative) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting , and must not be altered,
defaced , or covered by any other material.
If members have any question concerning this notice or
compliance with its provisions, they may communicate
directly with the Board's Regional Office, Fourth Floor,
16 Court Street , Brooklyn, New York 11201, Telephone
212-596-5386.