Local Union No. 55 Sheet Metal Workers

National Labor Relations Board - Board Decisions

Sep 4, 1979

244 N.L.R.B. 799 (N.L.R.B. 1979)

LOCAI. UNION NO. 55. SHEET ME[AL WORKERS
LKcal Union No. 55, Sheet Metal Workers Interna-
tional Association, AFL-CIO and Andtora Corp.
Cases 29-('C -583. 29('-CC-617, and 29-CP 368
September 4. 1979
DECISION AND ORDER
BY MEMBERS PNFI.IO, MtRPIIY. ANt) TRUISI)SAIE
On June 7. 1979, Administrative Law Judge Karl
H. Buschmann issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings.' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge and hereby or-
ders that the Respondent, Local Union No. 55, Sheet
Metal Workers International Association. AFL-CIO,
its officers, agents, and representatives, shall take the
action set forth in the said recommended Order, ex-
cept that the attached notice is substituted for that of
the Administrative Law Judge.2
I Respondent has excepted to certain credibility findings made by the Ad-
ministrative Law Judge. It is the Board's established policy not to overrule
an administrative law judge's resolutions with respect to credibility unless
the clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect Standard DlO Wall Products. Inc.. 91 NLRB 544
(1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefull) examined the
record and find no basis for reversing his findings.
We note that the United Brotherhood of Carpenters business agent. Peter
Cavanaugh. testified only concerning pickets he observed at the easterly en-
trance to Bonwit, and not, contrary to the Administrative Law Judge, con-
cerning pickets at both the easterly and the westerly entrances. We note also
that, although the testimony is somewhat unclear, it appears that the en-
counter between Andtora's president, Anthony Tortora. and Local 55's busi-
ness agent, Joseph Petillo, occurred at the westerly entrance to Bonwit. We
note further that Respondent's picket signs at The Admiralty named the
developer, not the general contractor, as the primary employer.
I This substitution is necessary to conform the notice to the recommended
Order.
APPENDIX
NOTICE To EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR REI.ATIONS BOARD
An Agency of the United States Government
Wt WILL NOT induce or encourage, by picket-
ing or any other means, individuals employed by
Jerry Kramer Company and Stasso & Collucci.
or any other person engaged in commerce or in
an industry affecting commerce, to engage in a
strike or refusal in the course of their employ-
ment to perform services for their respective em-
ployers. where an object thereof is to force an,
person to cease doing business with Andtora
Corp. and Thermal Comfort. Inc., or to frce or
require Jerry Kramer Company and Stasso &
Collucci to cease doing business with Andtora
Corp. and Thermal Comfort.
WE WIl.IL NOI threaten. coerce, or restrain Jer-
ry Kramer Company and Stasso & Collucci. or
any other employer, where an object thereof is to
force or require Jerry Kramer Company and
Stasso & Collucci, or any other employer, to
cease doing business with Andtora Corp. and
Thermal Comfort.
WE WIL. Not picket jobsites of Andtora Corp.
and Thermal Comfort, Inc., with an object of
forcing or requiring them to recognize or bargain
with us as the representative of their employees.
LOCAl UNION N. 55. SEIr MEAI.
WORKERS INTERNArlIONAL ASS()('IAIION,
AFL.-CIO
DECISION
KARI. H. BS( IIMANN. Administrative Law Judge: The
charge in Case 29 CC 583 was filed by Antonio Tortora on
July 27 and amended on August 2. 1977. The complaint in
that case issued on August 12. 1977. Additional charges
were filed in Case 29 CC 617 and Case 29 CP 368 on Max
II and May 15, 1978. The hearing in Case 29-CC 583 was
held on May 15. 1978. A consolidated complaint was issued
in Case 29 CC 617 and Case 29-CP-368. Upon a motion
of the General Counsel. these cases were consolidated with
Case 29 CC 583, and the hearing was reopened and closed
on July 24. 1978. The complaints allege that Local Union
No. 55, Sheet Metal Workers International Association,
AFL-CIO, violated Section 8(b)(4)(i) and (ii)(B) and (7)(A)
of the Act in its picketing activities directed against And-
tora Corp. and Thermal Comfort. Inc. In its answers the
Union denied the commission of any unfair labor practices.
Upon the basis of the entire record in this case and from
my observation of the witnesses and their demeanor. I
make the following:
FINDIN(i
1. THE BUSINESS OF 111 EMPIOYER
Andtora Corp. is a New York corporation with its princi-
pal place of business located at Bohemia. New York. Ther-
mal Comfort. Inc., is a Delaware corporation which shares
its principal place of business with Andtora in Bohemia.
New York. Thermal Comfort designs, coordinates, and sells
244 NLRB No. 125
799
LD)(ISIONS ()F}: NATIONAI IABOR RELATIONS BOARD
jobs in the field of heating. ventilating, and air-conditioning
for r-esidential and commercial buildings. Andtora Corp.
prosides the labor for sheet metal fabrication. installation,
and service on sub'ontracts obtained b Thermal (Comfort.
It provides such labor for no one other than Thermal ('om-
fort. Thermal (Comfort purchases the material and equip-
ment necessary for Andtora's installations. During the year
prior to the hearing in Ma3 1978, a representative period.
Thermal comfort purchased in excess of $50).000 worth of
goods and materials which it caused to be shipped from
points outside of New York to its office and jobsites in New
York.
Antonio Tortora is president of both Andtora and Ther-
mal Comfort: neither corporation has a board of directors.
He is the sole shareholder in Andtora and Thermal Com-
fort and controls the daily operations of both corporations.
Tortora hires and fires employees and establishes the wages
and benefits of both corporations.
Respondent contests the jurisdiction of the Board over
both corporations. The General Counsel responds that
Andtora and Thermal Comfort constitute a single em-
ployer. The Board considers several nominally separate
business entities to be a single employer where they com-
pose an integrated enterprise. Radio and Television Broad-
cast Technicians Local Union 1264 v. Broadcast Service o/f
Mobile, Inc.., 380 U.S. 255. 256 (1965). The controlling crite-
ria are: ( I) interrelation of operations. (2) common manage-
ment, (3) centralized control of labor relations, and (4) com-
mon ownership. The Board has particularly emphasized the
centralized control of labor relations as "indicating integra-
tion of such a degree as to warrant piercing the corporation
fiction and regarding them as single employer in legal con-
templation." Barwise Sheet Metal Co., Inc., e al., 199
NLRB 372. 378 (1972).
The evidence establishes that Andtora and Thermal
Comfort compose an integrated enterprise under the con-
trolling criteria established by the Board. Accordingly. I
find that Andtora and Thermal Comfort are an employer
engaged in commerce and in an industry affecting com-
merce within the meaning of Sections 2(1).(2),(6). and (7)
and 8(b)(9) of the Act.
It. tIIF ABOR ORGANIZAIION INVOI.VEI)
Respondent. Local Union No. 55. Sheet Metal Workers
International Association. AFL CIO. is a labor organiza-
tion within the meaning of the Act.
111. 111t AI.I.iED) I UNFAIR I.ABOR PRAC'TItES
Picketing of July 25 and 26. 1977
The Jerry Kramer Company was the general contractor
for The Admiralty, a townhouse development in Bay Shore,
New York. in September and October 1976. Thermal Com-
fort submitted a bid on the heating. ventilation, and air-
conditioning work at The Admiralty. At that time Leslie
Trinin. a partner of Kramer who handled the subcontract-
ing work, told Tortora that if Kramer awarded the contract
to Thermal. it would have to employ union labor. Trinin
provided him with a copy of a Local 55 contract. Trinin
testified that Ed Young asked him to intercede on Local
55's behalf In November 1976 Ed Young. business agent
for Respondent. asked Tortora to meet with him to discuss
the possibility of a collective-bargaining agreement with
Respondent. Tortora agreed. but the meeting never took
place. Kramer signed a contract in January 1977. and And-
tora employees commenced work in March at The Admi-
ralty. On May 20, 1977. Tortora signed an agreement with
Amalgamated Local Union 355 as the representative of' his
employees.
In July 1977 Kramer received a call from Dick Leo., a
plumbing union delegate. who requested a meeting con-
cerning the union status of Tortora's employees. Kramer
testified that Leo contacted him at Young's request. Kra-
mer met with delegates from the plumbing and electrical
unions and Young. Trinin stated that Tortora had an agree-
ment with Amalgamated 355. Young told Kramer that Tor-
tora's union was not a legitimate recognized union. Kramer
agreed to ascertain the union status of Tortora's employees.
On July 25. 1977. Tortora's field supervisor notified Tor-
tora that there were pickets at The Admiralty. When he
arrived at the jobsite Tortora saw two pickets with signs:
10 ItHE PLBI.I(
IHTIS EMPI OYIR
ADMIRALTY HO()MES
DOES NOr EMPI.OY
MEMBERS OF OR HAVE A
(ON () IRA('I Wirll
SlEE MEIAl. '(WORKIRS
LOCAL 55
AFt -CIO
Kramer testified that employees of Lilco Wachsberger, the
other sheet metal subcontractor, and some delivery trucks
refused to cross the picket line. He called Tortora several
times that day to express his concern that the job was slow-
ing down due to the pickets. Kramer also called Young and
asked him to remove the pickets. He told Young that he
would make every effort to get Tortora to meet with him
about dealing with Respondent. Kramer also directed Tor-
tora to attend this meeting at Kramer's office. The two
pickets returned on July 26.
On July 28 Tortora met with Kramer and Young and
Respondent's president. At that meeting Kramer promised
Young that he would award future subcontracts to Local 55
employers. Although Tortora explained his relationship
with Amalgamated 355. there was a discussion of rate
structures within Local 55. During and after the meeting.
Kramer expressed his strong support for Local 55 to Tor-
tora. A few days later, when Tortora refused to enter an
agreement with Local 55. Kramer informed Young that he
had "tried his best to work it out" and requested that he not
return the pickets.
8()(
LOCAL UNION NO. 55. SEETl METAI WORKERS
Picketing on May 11. 1978
Stasso & Collucci was the general contractor tfr The
Bonwit. a shopping center in Commack. New York. In
April 1978 it awarded the subcontract for the heating, ven-
tilation, and air-conditioning work to Thermal Comfort.
Andtora employees commenced work on May 8. 1978.
On May 11. 1978, Tortora's foreman notified him that
there were pickets at The Bonwit. and a delivery truck
would not cross the picket line. When Tortora arrived at
the jobsite. he took photographs of the pickets (G.C. Exhs.
2, 3. and 4. July 14, 1978). There were two pickets with
signs that read:
111S EMPI.()Y ER
DOES NOI MPI.OY
MEMBERS OF OR IIAVE A
(ON I RA( I WITI
L OCAL 55
AFt. CIO
The pickets were stationed at the easterly drive-in of The
Bonwit. Tortora asked Joseph Perillo. a picket and a busi-
ness agent for Local 55, what was going on. He responded.
"[R]ead the sign." The delivery driver told Tortora that he
would not cross the picket line. When Tortora asked Perillo
to authorize the driver to cross the picket line. Perillo again
replied. "[Rlead the sign."' Tortora made special arrange-
ments to have the delivery made a few days later.
According to the testimony in support of Respondent's
version of the events, Young had called Peter Cavanaugh.
business agent for the United Brotherhood of Carpenters.
on May 10, 1978. Young wanted to know if Garden City
Aluminum, a subcontractor at the Bonwit. had a collective-
bargaining agreement with his union. Cavanaugh checked
and discovered that Garden City Aluminum did not have
an agreement with either the Nassau or the Suffolk local.
And when Cavanaugh arrived at the jobsite on May II.
1978, he saw Young and other pickets at both the easterly
and the westerly entrances with signs identifying Garden
City Aluminum as the employer involved in the labor dis-
pute.
Yet Joseph Perillo, business agent for the Nassau local of
Respondent, testified that he and another union member
hurriedly stationed themselves at the westerly entrance to
The Bonwit when he saw Mr. Tortora arrive at the jobsite.
Perillo explained that initially he had failed to fill in the
name of the employer because he could not find a pen.
Analysis
The General Counsel contends that Respondent's picket-
ing at The Admiralty and The Bonwit violated Section
8(bX4)(i) and (ii)(B) of the Act, since it amounted to unlaw-
ful secondary boycotts. The Board has ruled that the pick-
Perillo corroborated Tortora's testimon).
eting of the premises of a secondarN emploer is primar it
it meets the fi)llowing conditions: (1 ) it is strictlx limited to
times when the status of the dispute is located on the sec-
ondary premises, (2) the primar` is engaged in its normal
business at the situs. (3) it is limited to places reasonablN
close to the location of the situs. and (4) it discloses clearlN
that the dispute is with the primar .
The Board has explained the thrust of the standards pro-
vided in Moore Dr- Doci in (;,tener 7leasl cr,. It WIr'ch,ulc
,and Dnirno E,,plo,,ec L Uni I.ocal No. 1 26, cl ,. Rcadv
:li ( Concretc. Inc,.). 200 NI.RB 253. 254 (19721:
The criteria set forth in Ioore Dr Dock are to as-
sure that common situs picketing, to he lawful. is con-
ducted in a manner that clearly indicates that the ap-
peal of the picketing is directed only to the emplo\ees
of the primary employer. The Board and the courts
uniformly have held that picketing at a common situs
violates Section 8(h)4)i) and (ii)(B) of the Act if anN
of the requirements of Moore Dnr Dock are disre-
garded, or if the picketing is in an' respect conducted
in a manner which demonstrates that the intent and
purpose of the picketing is to appeal to the employees
of secondary employers.
Regarding the picketing at The Admiralt. Respondent
named the general contractor as the primary emplo\er. Re-
spondent defends this action as lawful because it was con-
fused as to the identity of Andtora. Yet. Respondent's husi-
ness agent. Edwin Young. testified that Trinin had told him
that Andtora employees were performing the sheet metal
work at The Admiralty prior to the date of the picketing.
Whatever confusion may have existed. it does not exculpate
Respondent's actions.
With respect to the picketing at The Bonwit. Respondent
contends that its actions were directed against Garden Cit\
Aluminum. Yet. Respondent's witness testified that two
picket signs failed to name anV primary employer. I credit
Tortora's testimony, supported by exhibits. that he did not
see any pickets whose signs identified a primary employer.
Respondent's argument must be interpreted in the context
of Respondent's past attempts to persuade Tortora to enter
into an agreement with it and the actions of Respondent's
business agent. Perillo. at The Bonwit in failing to identity
Garden City Aluminum as the primary emploxer to the
truckdriver.
The two picketing incidents resulted in individuals refus-
ing to perform services at The Admiralty and at The Bon-
wit. Respondent sought to achieve such results in further-
ance of its labor dispute with Andtora and Thermal
Comfort. Accordingly. I find that Respondent's actions at
The Admiralty and at The Bonwit violated Section
8(b)(4)(i) and (ii)(B) of the Act.
In addition, General Counsel contends that Respondent
violated Section 8(b)(7)(A) by its actions at The Bonwit.
Section 8(b)(7)A) bars recognitional and organizational
picketing when an employer has lawfully' recognized an-
other union in accordance with the Act. The evidence es-
tablishes that Andtora lawfully recognized Amalgamated
Sailors' L'non of the Pacific .4 FL tiMoJre Dnr D. (Co ). 92 Nt. RB 547
(1950).
X()I
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
355 as the representative of its employees. Respondent's
argument that it engaged only in informational picketing
directed at the public is not persuasive in view of Respon-
dent's attempts to organize Respondent's employees and
Perillo's refusal to clarify his picketing activities. I therefore
find that Respondent also violated Section 8(b)(7)(A) of the
Act.
CON( I.USIONS OF LAW
1. By picketing on July 25 and 26, 1977, Respondent
induced or encouraged individuals employed by Kramer
and by picketing on May 11, 1978, Respondent induced or
encouraged individuals employed by Stasso & Collucci and
by other persons engaged in commerce and in industries
affecting commerce to engage in a strike and refusal in the
course of their employment to use, manufacture, process,
transport, and otherwise handle and work on goods, arti-
cles, materials, and commodities and to perform services for
their respective employers with an object of' forcing or re-
quiring Kramer, Stasso & Collucci, and other persons to
cease using, selling, handling, transporting, and otherwise
dealing in the products of Andtora and Thermal Comfort
and to cease doing business with Andtora and Thermal
Comfort. Respondent thereby engaged in an unfair labor
practice proscribed by Section 8(b)(4)(i)(B) of the Act.
2. By picketing on July 25 and 26, 1977, Respondent
threatened, coerced, or restrained Kramer and by picketing
on May 11. 1978, Respondent threatened, coerced, or re-
strained Stasso & Collucci and other persons engaged in
comerce or in industries affecting commerce with an object
of forcing or requiring Kramer and other persons to cease
using, selling, handling, transporting, and otherwise dealing
in the products of Andtora and Thermal Comfort and to
cease doing business with Andtora and Thermal Comfort.
Respondent thereby engaged in an unfair labor practice
proscribed by Section 8(b)(4)(ii)(B) of' the Act.
3. By picketing on May 11, 1978, with an object of forc-
ing or requiring Andtora and Thermal Comfort to recog-
nize or bargain with Respondent as the representative of its
employees, Respondent engaged in an unfair labor practice
proscribed by Section 8(b)(7)(A) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I find it necessary to order Respon-
dent to cease and desist therefrom and to take certain affir-
mative action designed to effectuate the policies of the Act.
In addition, it will be recommended that Respondent be
ordered to cease and desist from any secondary boycott as
defined by Section 8(b)(4)(i) and (ii)(B) of the Act against
Andtora and Thermal Comfort.
Upon the foregoing findings of fact and conclusions of
law, upon the entire record. and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER'
Respondent Local Union No. 55, Sheet Metal Workers
International Association. AFL. CIO. Bohemia. New York,
its officers, agents, and representatives, shall:
I. Cease and desist from:
(a) Inducing or encouraging, by picketing or any other
means, individuals employed by Jerry Kramer Company
and Stasso & Collucci or any other person engaged in com-
merce or in an industry affecting commerce to engage in a
strike or refusal in the course of their employment to per-
form services for their respective employers. where an ob-
ject thereof is to force any person to cease doing business
with Andtora Corp. and Thermal Comfort. Inc.. or to force
or require Kramer and Stasso & Collucci to cease doing
business with Andtora and Thermal Comfort.
(b) Threatening, coercing. or restraining Kramer and
Stasso & Collucci or any other employer where an object
thereof is to force or require Kramer and Stasso & ('ollucci
or any other employer to cease doing business with And-
tora and Thermal Comfort.
(c) Picketing Andtora and Thermal Comfort jobsites
with an object of forcing or requiring them to recognize or
bargain with Respondent as the representative of their em-
ployees.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act:
(a) Post at Respondent's business office, meeting halls,
and all other places where notices to members are custom-
arily posted copies of the attached notice marked "Appen-
dix."' Copies of said notice, on forms provided by the Re-
gional Director for Region 29, after being duly signed by an
authorized representative of Respondent, shall be posted by
Respondent immediately upon receipt thereof; and be
maintained by it for 60 consecutive days thereafter. in con-
spicuous places. including all places where notices to mem-
bers are customarily posted. Reasonable steps shall be
taken by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(b) Sign and mail sufficient copies of said notice to the
Regional Director for Region 29 for posting by the Employ-
ers named in the preceding paragraphs, if they are willing,
at all places where notices to their respective employees are
customarily posted.
(c) Notify the Regional Director for Region 29, in writ-
ing. within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board. the findings,
conclusions, and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations. be adopted by the Board and become its
findings. conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes.
I In the event that this Order is enforced by a Judgment of a United States
Court of Appeals, the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
802